Agreements. The Issuers agree with the several Underwriters that: (a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished to the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of each series of Securities, 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 for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable. (b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule. (c) 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 an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives 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 Representatives in such quantities as the Representatives may reasonably request. (d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of Section 5(a), an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request. (e) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, to its security holders and to the Representatives, an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Rule 158, which may be satisfied through the filing with the Commission of reports required under the Exchange Act. (f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters). (g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Issuers be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject. (h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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. (i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company or the Guarantors (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto. (j) The Company and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Final Prospectus.
Appears in 4 contracts
Sources: Underwriting Agreement (Oneok Inc /New/), Underwriting Agreement (Oneok Inc /New/), Underwriting Agreement (Oneok Inc /New/)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) ), or confidential submission, of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Units upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Common Stock and Warrants (or such other security into which the Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with an exchange of the Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Units and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm that commonly renders valuation opinions for the type of company we are seeking to acquire, that such Business Combination is fair to the Company from a financial point of view. Other than payments made pursuant to the Advisory Agreement, the Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the identifying, investigating and completing Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and (ii) may be repaid loans as described in the Registration Statement.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 60 days following the Effective Date, in each case other than the Final Prospectus.event any person or entity (regardless of any FINRA affiliation or association) is engage
Appears in 4 contracts
Sources: Underwriting Agreement (Thunder Bridge Capital Partners IV, Inc.), Underwriting Agreement (Thunder Bridge Capital Partners III Inc.), Underwriting Agreement (Thunder Bridge Capital Partners III Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives Representative with a copy for their review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives Representative reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission requestobjects. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives Representative in such quantities as the Representatives Representative may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives Representative in such quantities as the Representatives Representative may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Securities and on the initial resale thereof by the Underwriters and on the execution and delivery of this Agreement. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(h) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms, and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters.
(j) The Company and the Guarantors will not, at any time at or after the execution of this Agreementnot take, directly or indirectly, offer any action designed to or sell any Securities by means that might reasonably be expected to constitute or that would cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any “prospectus” (within the meaning security of the ActCompany to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including U.S. and Cayman Islands counsel and any local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(l) For a period commencing on the Effective Date and ending five (5) years from the Exercisability Date or until such earlier time at which the Liquidation occurs, the Company will use its commercially reasonable best efforts to maintain the registration of the Units, Class A Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Class A Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(m) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(n) For a period commencing on the Effective Date and ending five (5) years from the Exercisability Date or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(o) For a period commencing on the Effective Date and ending five (5) years from the Exercisability Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(p) For a period commencing on the Effective Date and ending five (5) years from the Exercisability Date or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other than compensation prior to, or in connection with any services rendered in order to effectuate the Final Prospectus.consummation of the Company’s initial Business Combination (r
Appears in 4 contracts
Sources: Underwriting Agreement (Tristar Acquisition I Corp.), Underwriting Agreement (Tristar Acquisition I Corp.), Underwriting Agreement (Tristar Acquisition I Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms or any transfer of Founder Shares to any current or future independent director of the Company (provided that such current or future independent director transferee is subject to an Insider Letter or executes an agreement substantially identical to the Insider Letter, as applicable to directors and officers, at the time of such transfer) and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 5 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee, the allocable costs of employees of an affiliate of the Sponsor or otherwise, or other than compensation in connection with identifying, investigating and completing the Final Prospectus.Business Combination; provided however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the
Appears in 4 contracts
Sources: Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III), Underwriting Agreement (Oaktree Acquisition Corp. III)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 5 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case other than the Final Prospectus.event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for
Appears in 4 contracts
Sources: Underwriting Agreement (Oaktree Acquisition Corp. II), Underwriting Agreement (Oaktree Acquisition Corp. II), Underwriting Agreement (Oaktree Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) ), or confidential submission, of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) issue and sell the Forward Purchase Securities, (4) register with the Commission pursuant to the Registration Rights Agreement or the Forward Purchase Agreement, as applicable, in accordance with the terms of the Registration Rights Agreement or the Forward Purchase Agreement, as applicable, the resale of the securities covered thereby, and (5) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates, if any, for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by the Company and its executive officers (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Audited Balance Sheet. Additionally, if not disclosed on such Current Report, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website or otherwise available on the Company’s website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Except as disclosed in the Registration Statement, the Company shall not pay the Sponsor or its affiliates or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and (ii) may be repaid loans as described in the Registration Statement.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 60 days following the Effective Date, in each case other than the Final Prospectus.event any Member or an affiliate or associated person thereof that has participated (as such term is used in FINRA Rule 5110) in the Offering is engaged to assist the Company in its search for a merger candidate or to provide
Appears in 4 contracts
Sources: Underwriting Agreement (Thimble Point Acquisition Corp. II), Underwriting Agreement (Thimble Point Acquisition Corp.), Underwriting Agreement (Thimble Point Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives with a copy for their review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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 Statement, any Rule 462(b) Registration Statement, any Written Testing-the-Waters Communication or any reports, surveys or other data from which any statistical, industry-related or market-related data included in the Registration Statement, the Statutory Prospectus or the Prospectus is based or from which such data was derived or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of Statement, any notice objecting to its use or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any supplement thereto or any Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided that the Company will be deemed to have furnished such statements to its security holders and the Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, which may Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Securities that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending on, until and including, the date that is 180 days after the date of this Agreement; provided, however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, (4) register with the Commission pursuant to the Warrant Agreement, in accordance with the terms of the Warrant Agreement, the issuance of the shares of Common Stock to be issued upon exercise of the Warrants, and (5) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several U.S. states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount, in the case of the fees and expenses of counsel, up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Audited Balance Sheet. Additionally, if not disclosed on the Closing Form 8-K referred to in the immediately preceding sentence, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities in each case their capacities as such; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other than additional documents referred to in the Final Prospectuspreceding sentence filed on ▇▇▇▇▇ will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities, secretarial support and administrative services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate its initial Business Combination with any business that is affiliated with the Sponsor or any of the Company’s officers or directors unless a committee of the Company’s independent and disinterested directors approves such initial Business Combination and such committee obtains an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions that such initial Business Combination is fair to the Company from a financial point of view.
(r) Th
Appears in 3 contracts
Sources: Underwriting Agreement (Focus Impact Acquisition Corp.), Underwriting Agreement (Focus Impact Acquisition Corp.), Underwriting Agreement (Focus Impact Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the- Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade at such time, not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Securities Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) ), of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms or any transfer of Founder Shares to any current or future independent director of the Company (provided that such current or future independent director transferee is subject to the Insider Letter or executes an agreement substantially identical to the Insider Letter, as applicable to directors and officers, at the time of such transfer) and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Stockholder Rights Agreement, in accordance with the terms of the Registration and Stockholder Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including the reasonable and documented fees and expenses of counsel for the Underwriters relating to filings with FINRA in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs (as applicable, the “Termination Date”), the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending on the earlier of the Termination Date and the date the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending on the Termination Date, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and current reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and current reports or other additional documents referred to in the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending on the earlier of the Termination Date and the date the shares of Common Stock and Warrants cease to be publicly traded, the Company, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the Termination Date.
(q) The Company will not consummate an initial Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it or a committee of the Company’s independent directors obtains an opinion from an independent investment banking firm or an accounting firm that such Business Combination is fair to the Company and its stockholders from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination except as described in the Registration Statement.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days’ following the effective date of the Registration Statement, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will
Appears in 3 contracts
Sources: Underwriting Agreement (New Providence Acquisition Corp. II), Underwriting Agreement (New Providence Acquisition Corp. III), Underwriting Agreement (New Providence Acquisition Corp. II)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representative; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the CAPSTM that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, in each case, other than those entities or individuals that have executed the Insider Letter), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other CAPSTM, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Business Day set forth Company may (1) issue and sell the Private Placement CAPSTM (including the Private Placement CAPSTM that may be issued upon conversion of working capital loans) and the Private Placement Shares and the Private Placement Warrants included therein, (2) issue and sell the Option Securities on Schedule I heretoexercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Partnering Transaction.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Common Stock (or such other security into which shares of Common Stock may be exchanged in connection with a Partnering Transaction) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Partnering Transaction. The Company will not deregister the Common Stock under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Partnering Transaction or a going private transaction after the completion of a Partnering Transaction) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative services exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Partnering Transaction or the Liquidation.
(q) The Company will not consummate a Partnering Transaction with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Partnering Transaction is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Partnering Transaction; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $20,000 per month for office space, utilities and secretarial and administrative services pursuant to the Admi
Appears in 3 contracts
Sources: Underwriting Agreement (Periphas Capital Partnering Corp), Underwriting Agreement (Executive Network Partnering Corp), Underwriting Agreement (Executive Network Partnering Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives with a copy for their review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives in such quantities as the Representatives may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Securities and on the initial resale thereof by the Underwriters and on the execution and delivery of this Agreement. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(h) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transaction, until transaction during the Business Day set forth period commencing on Schedule I hereto.
(j) The Company the date hereof and the Guarantors will not, at any time at or ending 180 days after the execution date of this Agreement; provided, directly or indirectlyhowever, offer or sell any Securities by means that the foregoing shall not apply to the forfeiture of any “prospectus” (within the meaning a portion of the Act), or use any “prospectus” Founder Shares pursuant to their terms and the Company may (within 1) issue and sell the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Final Prospectus.Private Placement Warrants,
Appears in 3 contracts
Sources: Underwriting Agreement (Navigation Capital Acquisition IX Corp.), Underwriting Agreement (Navigation Capital Acquisition VII Corp.), Underwriting Agreement (Navigation Capital Acquisition VIII Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Comp
Appears in 3 contracts
Sources: Underwriting Agreement (Gores Holdings III, Inc.), Underwriting Agreement (Gores Holdings III, Inc.), Underwriting Agreement (Gores Holdings III, Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Warrants, shares of Common Stock or any other securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement or the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing or submission with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states; and any filings required to be made with FINRA (including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities provided that the cost of a journey in a vehicle carrying members of the Company and members of the Underwriters shall be shared equally between the Company and the Underwriters; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. For a period commencing on the Effective Date and ending upon the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Units under the provisions of the Exchange Act. During such applicable period, the Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement to the extent such information or documents are not otherwise publicly available. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website or otherwise available on the Company’s website will be considered furnished for the purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it, or a committee of its independent and disinterested directors, obtains an opinion from an independent investment banking firm that is a member of FINRA or from an independent accounting firm that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final Prospectus.Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to identifying, investigating and completing
Appears in 3 contracts
Sources: Underwriting Agreement (Fortress Value Acquisition Corp. II), Underwriting Agreement (Fortress Value Acquisition Corp.), Underwriting Agreement (Fortress Value Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is); provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to the Company’s formation and initial public offering and to identifying, investigating and completing an initial business combination, (ii) may be repaid loans as described in the Registration Statement and (iii) may receive a payment in connection with the successful completion of the Company’s initial Business Combination, which payment will not be made from the proceeds from the Offering held in the Trust Account.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 90 days following the Effective Date, in each case other than the Final Prospectus.event any person or entity (re
Appears in 3 contracts
Sources: Underwriting Agreement (RMG Acquisition Corp.), Underwriting Agreement (RMG Acquisition Corp.), Underwriting Agreement (RMG Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on NASDAQ; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other than compensation prior to, or in connection with any services rendered in order to effectuate the Final consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is); provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to the Company’s formation and initial public offering and to identifying, investigating and completing an initial business combination, (ii) may be repaid loans as described in the Registration Statement and (iii) may receive a payment in connection with the successful completion of the Company’s initial Business Combination, which payment will not be made from the proceeds from the Offering held in the Trust Account prior to the consummation of the Business Combination.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 90 days following the Effective
Appears in 3 contracts
Sources: Underwriting Agreement (Yellowstone Acquisition Co), Underwriting Agreement (East Resources Acquisition Co), Underwriting Agreement (Yellowstone Acquisition Co)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of the Securities, 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 any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Securities Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) issue shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock in connection with the Business Day set forth on Schedule I heretoCombination and (4) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares, the Private Placement Warrants and the shares of Common Stock issuable upon exercise thereof.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Act) Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offer or offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates, if any, for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the NASDAQ Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which Report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period of five (5) years from the Effective Date or until such earlier time that the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company will furnish to the Representative such copies of financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities and such additional documents and information with respect to the Company as the Representative may from time to time reasonably request. Any financial statements and reports filed on the Commission’s E▇▇▇▇ website will be considered furnished for purposes of this section.
(o) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company under the Services Agreement be more than $10,000 per month in the aggregate for office space, utilities, secretarial support and administrative services until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) Other than payments made pursuant to the terms of the Services Agreement and except as set forth in this subsection, the Company shall not pay the Sponsor or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation of any kind (including finder’s fees and consulting fees) for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and the amount of interest income that may be released from the Trust Account as described in the Registration Statement and (ii) may be repaid loans and advances as described in the Registration Statement.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representative and its counsel a notification prior to entering into the agreement or transaction relating to a potential Business Combination: (i) the identity of the person or entity providing any such services prior to entering into the agreement or transaction; (ii) complete details of all such services and copies of all agreements governing such services; and (iii) justification as to why the value received by any person or entity for such services is not underwriting compensation for the Offering. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the tender offer mate
Appears in 3 contracts
Sources: Underwriting Agreement (Easterly Acquisition Corp.), Underwriting Agreement (Easterly Acquisition Corp.), Underwriting Agreement (Easterly Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that this paragraph (h) shall not prohibit (1) the issuance and sale of the Private Placement Warrants by the Company, (2) the issuance and sale by the Company of the Option Securities on exercise of the option provided for in Section 2 hereof, (3) the registration by the Company with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, of the resale of the securities covered thereby, (4) the transfer of securities of the Company by the Sponsor in with the connection transactions described in the prospectus under the heading “Certain Relationships and Related Party Transactions” and (5) the issuance of securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $10,000 per month for office space, utilities, secretarial support and other than administrative and consulting services pursuant to the Final Prospectus.Ad
Appears in 3 contracts
Sources: Underwriting Agreement (Legacy Acquisition Corp.), Underwriting Agreement (Legacy Acquisition Corp.), Underwriting Agreement (Legacy Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) ), or confidential submission, of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and (ii) may be repaid loans as described in the Registration Statement.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to FINRA
Appears in 3 contracts
Sources: Underwriting Agreement (TWC Tech Holdings II Corp.), Underwriting Agreement (TWC Tech Holdings II Corp.), Underwriting Agreement (TWC Tech Holdings II Corp.)
Agreements. The Issuers agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of each series of Securities, 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 for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective 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, upon such issuance, occurrence or notice of objection, will to promptly use their its reasonable best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives 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 Representatives you in such quantities as the Representatives you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of Section 5(a), an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(e) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, to its security holders and to the Representatives, an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Rule 158, which may be satisfied through the filing with the Commission of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters).
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Issuers be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company or the Guarantors (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Final Prospectus.
Appears in 3 contracts
Sources: Underwriting Agreement (Oneok Inc /New/), Underwriting Agreement (Oneok Inc /New/), Underwriting Agreement (Oneok Inc /New/)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representative; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, in each case, other than those entities or individuals that have executed the Insider Letter), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Stockholder Rights Agreement, in accordance with the terms of the Registration and Stockholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Common Stock (or such other security into which shares of Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Common Stock under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $10,000 per month for office space, utilities and secretarial and administrative support pursuant to the Administrative Support Agreement between the Company and an affiliate of
Appears in 3 contracts
Sources: Underwriting Agreement (Juniper Industrial Holdings, Inc.), Underwriting Agreement (Juniper Industrial Holdings, Inc.), Underwriting Agreement (Juniper Industrial Holdings, Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Stockholder Rights Agreement, in accordance with the terms of the Registration and Stockholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Common Stock (or such other security into which shares of Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Common Stock under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $10,000 per month for office space, utilities and secretarial and administrative support pursuant to the Administrative Support Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from
Appears in 3 contracts
Sources: Underwriting Agreement (Conyers Park III Acquisition Corp.), Underwriting Agreement (Conyers Park III Acquisition Corp.), Underwriting Agreement (Conyers Park III Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesDeutsche Bank Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any invest
Appears in 3 contracts
Sources: Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings v Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on the Commission’s Electronic Data Gathering, which may Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter; provided that the foregoing restrictions shall not apply to the forfeiture of any Sponsor Shares or Founder Shares pursuant to the terms of the Insider Letter or any transfer of Sponsor Shares or Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Insider Letter with respect to such Sponsor Shares or Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Common Stock (or such other security into which such Common Stock may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company to the Sponsor for administrative support exceed $25,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or another independent entity that commonly renders valuation opinions, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the
Appears in 3 contracts
Sources: Underwriting Agreement (Beard Energy Transition Acquisition Corp.), Underwriting Agreement (Beard Energy Transition Acquisition Corp.), Underwriting Agreement (Beard Energy Transition Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with an initial Business Day Combination, provided, further, however, the foregoing shall not apply to the forfeiture of any Founder Shares pursuant to the terms or any transfer of Founder Shares to any current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Letter Agreement at the time of such transfer and as long as, to the extent any reporting obligation under Section 16 of the Exchange Act is triggered as a result of such transfer, any related filing under Section 16 of the Exchange Act includes a practical explanation as to the nature of the transfer), or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 5 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K referenced in the immediately prior sentence.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm, or from an independent entity that commonly renders valuation opinions, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compens
Appears in 3 contracts
Sources: Underwriting Agreement (H.I.G. Acquisition Corp.), Underwriting Agreement (H.I.G. Acquisition Corp.), Underwriting Agreement (H.I.G. Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or any supplement (including the Final Prospectus or amendment to either any Preliminary Prospectus) preliminary prospectus or to the Base Prospectus Prospectus, whether pursuant to the Act, the Exchange Act or otherwise unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will prepare a final term sheet (the “Final Term Sheet”), in substantially the form of Exhibit A hereto, reflecting the final terms of the Securities, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two Business Days after the date hereof; provided that the Company shall furnish the Representatives reasonably object, unless, (i) in with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the judgment of Representatives or counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission requestUnderwriters shall object. Subject to the foregoing second preceding sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company will comply with the requirements of Rule 430B and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed (without reliance on Rule 424(b)(8)), and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i1) when any post-effective amendment to the Registration Statement or new registration statement relating to the Securities shall become effective, (2) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii3) when, prior to termination of the offering receipt of each series of Securities, any amendment to comments from the Registration Statement shall have been filed or become effectiveCommission, (iii4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or for any supplement to the Final Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof, or for any additional information, (iv5) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or any notice pursuant to Rule 401(g)(2) of the Regulations or any order preventing or suspending the use of any preliminary prospectus, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Act concerning the Registration Statement, (6) if the Company becomes the subject of a proceeding under Section 8A of the Act in connection with the offering of the Securities and (v7) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection qualification and, if issued, to obtain as soon as possible the withdrawal thereof. The Company shall pay the required Commission filing fees relating to the use Securities within the time required by Rule 456(b)(1)(i) of the Registration Statement and, upon such issuance, occurrence or notice Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of objection, will promptly use their reasonable best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, Regulations (including, if necessaryapplicable, by filing an updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a new registration statement and using their reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus prospectus filed pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives 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 Representatives in such quantities as the Representatives may reasonably request).
(db) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i1) notify the Representatives of any such event, (ii2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable 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 use of the Final Prospectus compliance and (iv3) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Securities) or the Statutory 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 light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(ec) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may be satisfied through the filing with the Commission of reports required 158 under the Exchange Act.
(fd) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, any preliminary prospectus and the Final Prospectus and each Issuer Free Writing Prospectus and any supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus and the Prospectus and amendments thereof and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared any agreement among Underwriters relating to the offering of the Securities); (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(e) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating agencies for rating the Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of the Trustee and the fees and disbursements of counsel for the Trustee in connection with this Agreement, the Indenture and the Securities; and (vii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, Section 7 and Section 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and disbursements of their counsel, transfer taxes on resale of any of the Underwriters)Securities by them, and any advertising expenses connected with any offers they may make.
(ge) The Company will arrange, if necessary, arrange for the qualification of each series of the Securities for sale under the laws of such jurisdictions states as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably required for the distribution of such series of the Securities and will pay any fee of FINRA in connection with its review arrange for the determination of the offeringlegality of the Securities for purchase by institutional investors; provided provided, however, that in no event the Company shall the Issuers not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(hf) Each of the The Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating use its best efforts to list the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by on the Company with the Commission or retained by the Company under Rule 433stock exchange, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included if any, set forth in Schedule III I hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(ig) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any entity affiliate of the Company or any person in privity with the Company or any entity affiliate of the Company), ) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company or that are substantially similar to the Guarantors Securities (other than the SecuritiesSecurities and any debt securities that mature within one year of their date of issue) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(jh) The Company and the Guarantors will not, at any time at or after the execution of this Agreementnot take, directly or indirectly, offer any action designed to or sell any Securities by means that would constitute, under the Exchange Act or otherwise, stabilization or manipulation of the price of any “prospectus” (within the meaning security of the Act), Company to facilitate the sale or use any “prospectus” (within the meaning resale of the ActSecurities.
(i) in connection with The Company will use the offer or net proceeds received by it from the sale of the SecuritiesSecurities in the manner specified in the Disclosure Package and the Prospectus under “Use of Proceeds.”
(j) The Company represents and agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in each case other than Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Final Commission or retained by the Company under Rule 433; provided, however, that the prior written consent of the parties hereto shall be deemed to have been given in respect of any free writing prospectus included in Schedule III hereto. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
Appears in 3 contracts
Sources: Underwriting Agreement (Archer-Daniels-Midland Co), Underwriting Agreement (Archer Daniels Midland Co), Underwriting Agreement (Archer Daniels Midland Co)
Agreements. The Issuers agree Each of the Apollo Parties agrees with the several Underwriters each Underwriter that:
(a) Prior The Issuer, subject to Section 5(c), will comply with the termination requirements of the offering of the SecuritiesRule 430B, neither the Company nor any Guarantor and will file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished to notify the Representatives a copy for their review prior to filing immediately, and will not file any such proposed amendment or supplement to which confirm the Representatives reasonably object, unlessnotice in writing, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes when any post-effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of each series of Securities, any amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed or become effectivefiled, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission or its staff for any amendment of to the Registration Statement or for any amendment or supplement to the Final Prospectus Prospectus, including any document incorporated by reference therein or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any notice objecting to its order preventing or suspending the use of any Preliminary Prospectus or the institution Prospectus, or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Act concerning the Registration Statement and (v) if the Issuer becomes the subject of a proceeding for such purposeunder Section 8A of the Act in connection with the offering of the Securities. The Company Issuer will effect all filings required under Rule 424(b), in the manner and within the Guarantors time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will use their respective take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Issuer will make every reasonable best efforts effort to prevent the issuance of any such stop order order, prevention or the occurrence of suspension and, if any such suspension or objection to the use of the Registration Statement andorder is issued, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, lifting thereof at the earliest possible moment. The Issuer shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) and otherwise in accordance with Rules 456(b) and 457(r) (including, if necessaryapplicable, by filing an updating the “Calculation of Filing Fee Table” exhibit in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or in an exhibit to a new registration statement and using their reasonable best efforts prospectus filed pursuant to have such amendment or new registration statement declared effective as soon as practicableRule 424(b)).
(b) The Company Apollo Parties will prepare a final term sheetnot amend or supplement the Registration Statement or the Prospectus other than by the Issuer filing documents under the Exchange Act that are incorporated by reference therein, containing solely a description without the prior written consent of final terms the Representatives; provided, however, that prior to the completion of the distribution of the Securities and the offering thereof, in a form approved by the Underwriters (as defined by the Underwriters), the Issuer will not file any document under the Exchange Act that is incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus unless, prior to such proposed filing, the Apollo Parties use reasonable efforts to furnish the Representatives and substantially as attached as Schedule IV hereto and with a copy of such document for their review. The Apollo Parties will file such term sheet pursuant to Rule 433(d) within promptly advise the time required Representatives when any document filed under the Exchange Act that is incorporated by such Rulereference in the Registration Statement, the Disclosure Package or the Prospectus shall have been filed with the Commission.
(c) If, at any time prior The Issuer will comply with the Act and the Exchange Act so as to permit the filing completion of the Final Prospectus pursuant to Rule 424(b)distribution of the Securities as contemplated in this Agreement and in the Registration Statement, any event occurs as a result of which the Disclosure Package would include an untrue statement of a material fact or omit to state any material fact necessary to make and the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives 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 Representatives in such quantities as the Representatives may reasonably request.
(d) If, Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required by the Act to be delivered under in connection with sales of the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities, any event occurs shall occur or condition shall exist as a result of which it is necessary, in the Final Prospectus as then supplemented would opinion of counsel for the Underwriters or for the Issuer, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereintherein not misleading, (ii) amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made existing at such time, not misleading, the time it is delivered to a purchaser or if it shall be necessary to (iii) amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final ProspectusAct, the Company Issuer will promptly will (iA) notify give the Representatives notice of any such event, ; (iiB) prepare and file with the Commission, subject to the second sentence of Section 5(a), an any amendment or supplement or new registration statement which will as may be necessary to correct such statement or omission or effect to make the Registration Statement, the Disclosure Package or the Prospectus comply with such compliancerequirements and, within a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement; and (iiiC) file with the Commission any such amendment or supplement; provided that the Issuer shall not file or use its reasonable best efforts any such amendment or supplement to have any amendment which the Representatives or counsel for the Underwriters shall object. The Issuer will furnish to the Registration Statement Underwriters such number of copies of such amendment or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities supplement as the Representatives Underwriters may reasonably request. The Issuer has given the Representatives notice of any filings made pursuant to the Exchange Act or the rules thereunder within 48 hours prior to the Applicable Time; the Issuer will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
(e) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, to its security holders and to the Representatives, an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Rule 158, which may be satisfied through the filing with the Commission of reports required under the Exchange Act.
(fd) The Company Issuer has furnished or will furnish or otherwise make available upon request deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits theretofiled therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and to each other Underwriter a copy signed copies of all consents and certificates of experts. The copies of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may and each amendment thereto furnished to the Underwriters will be required by identical to the Act (including in circumstances where such requirement may be satisfied electronically transmitted copies thereof filed with the Commission pursuant to Rule 172)▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) The Issuer has delivered to each Underwriter, without charge, as many copies of each Preliminary ProspectusProspectus as such Underwriter reasonably requested, and the Final Issuer hereby consents to the use of such copies for purposes permitted by the Act. The Issuer will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Act, such number of copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto (as the Representatives amended or supplemented) as such Underwriter may reasonably request. The Company will pay the expenses of printing Prospectus and any amendments or other production of all documents relating supplements thereto furnished to the offering Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(other than internal sales memoranda prepared by any f) The Issuer will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Underwriters)Act.
(g) The Company Apollo Parties will arrange, if necessary, for the qualification of each series of the Securities for sale by the Underwriters under the laws of such jurisdictions as the Representatives may reasonably designate, designate (including Japan and certain provinces of Canada) and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review sale of the offeringSecurities; provided that in no event shall the Issuers any Apollo Party be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject. The Apollo Parties will promptly advise the Representatives of the receipt by any Apollo Party of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(h) Each of the Company and the Guarantors agree that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees The Apollo Parties will cooperate with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made Representatives and will not make any offer relating use their best efforts to permit the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared eligible for clearance and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” settlement through The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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 keepingDepository Trust Company.
(i) The Company Apollo Parties will use the net proceeds received by the Issuer from the sale of the Securities pursuant to this Agreement in the manner specified in the Registration Statement, the Disclosure Package and the Guarantors Prospectus under the caption “Use of Proceeds.”
(j) [Reserved.]
(k) The Apollo Parties will notnot for the period between the Execution Time and continuing to and including the Closing Date, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company Apollo Parties or any affiliate Affiliate of the Company Apollo Parties or any person in privity with the Company Apollo Parties or any affiliate Affiliate of the Company)Apollo Parties, directly or indirectly, including or announce the filing (or participation in the filing) offering, of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company or the Guarantors Apollo Parties (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto).
(jl) The Company Issuer, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(m) The Issuer agrees that, unless it obtains the prior written consent of the Representatives, it 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,” or a portion thereof, required to be filed by the Issuer with the Commission or retained by the Issuer under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule II hereto and any “road show that is a written communication” within the Guarantors meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives. The Issuer represents that it has treated or agrees that it will nottreat each such free writing prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any Preliminary Prospectus or the 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 light of the circumstances existing at that subsequent time, not misleading, the Issuer will promptly notify the Representatives and will promptly amend or after the execution of this Agreementsupplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(n) The Apollo Parties will not take, directly or indirectly, offer any action designed to, or sell any Securities by means that has constituted or that might reasonably be expected to, cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any “prospectus” (within the meaning security of the Act)Apollo Parties to facilitate the sale or resale of the Securities.
(o) The Apollo Parties will, for a period of twelve months following the Execution Time, furnish to the Representatives (i) all reports or other communications (financial or other) regarding the Issuer generally made available to its security holders, and deliver such reports and communications to the Representatives as soon as they are available, unless such documents are furnished to, or use filed with, the Commission or any “prospectus” (within the meaning securities exchange on which any class of securities of the ActIssuer is listed and generally made available to the public and (ii) such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Issuer and its subsidiaries are consolidated in reports furnished to its security holders).
(p) [Reserved.]
(q) The Apollo Parties agree to pay the costs and expenses relating to the following matters: (i) the preparation of the Indenture and the issuance of the Securities and the fees of the Trustee and the reasonable fees and expenses of counsel for the Trustee; (ii) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto; (iii) the preparation, printing and delivery to the Underwriters of copies of each Preliminary Prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, each Issuer Free Writing Prospectus, and the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (v) the preparation, printing, authentication, issuance and delivery of the Securities; (vi) any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (vii) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (viii) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, Japan, the provinces of Canada and any other jurisdictions specified pursuant to Section 5(g) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (ix) the transportation and other expenses incurred by or on behalf of representatives of the Apollo Parties (other than the Underwriters in their capacity as such) in connection with presentations to prospective purchasers of the offer or Securities; (x) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities, ; (xi) [Reserved]; (xii) the fees and expenses of the Apollo Parties’ accountants and the fees and expenses of counsel (including local and special counsel) for the Apollo Parties in each case respect of the transactions contemplated hereby; (xiii) any fees charged by the rating agencies for the rating of the Securities; and (xiv) all other than the Final Prospectus.costs and expenses incid
Appears in 2 contracts
Sources: Underwriting Agreement (Apollo Global Management, Inc.), Underwriting Agreement (Apollo Global Management, Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Ordinary Shares that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company pursuant to Rule 433 under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, or to taxation as a foreign corporation in any jurisdiction where it is not now so subject. Until the earliest of (i) the date on which all Underwriters shall have ceased to engage in market-making activities in respect of the Securities, (ii) the date on which the Securities are listed on the Nasdaq Capital Market (or any successor thereto), (iii) a going private transaction after the completion of a Business Combination, and (iv) the date of the commencement of the winding up of the Company, in each jurisdiction where such qualification shall be effected, the Company will, unless the Representatives agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may be required to qualify the Securities for offering and sale under the securities laws of such jurisdiction.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, charge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt Ordinary Shares or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Shares, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to U.S. $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed U.S. $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other than compensation in connection with identifying, investigating and completing the Final ProspectusBusiness Combination.
(r) The Company will apply the net proceeds from the Offering and the s
Appears in 2 contracts
Sources: Underwriting Agreement (Vector Acquisition Corp IV), Underwriting Agreement (Vector Acquisition Corp III)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Warrants, shares of Common Stock or any other securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement or the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing or submission with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states; and any filings required to be made with FINRA (including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities provided that the cost of a journey in a vehicle carrying members of the Company and members of the Underwriters shall be shared equally between the Company and the Underwriters; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Unit Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Unit Program; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. For a period commencing on the Effective Date and ending upon the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Units under the provisions of the Exchange Act. During such applicable period, the Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement to the extent such information or documents are not otherwise publicly available. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website or otherwise available on the Company’s website will be considered furnished for the purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it, or a committee of its independent and disinterested directors, obtains an opinion from an independent investment banking firm that is a member of FINRA or from an independent accounting firm that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final Prospectus.Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the
Appears in 2 contracts
Sources: Underwriting Agreement (Fortress Value Acquisition Corp. IV), Underwriting Agreement (Fortress Value Acquisition Corp. III)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered issued under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Representative to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Letter Agreement; provided, that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Letter Agreement or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Letter Agreement with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes (but, in no event, taxes imposed on the net income of an Underwriter) in connection with the offer or original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on NASDAQ; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount of up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) [Intentionally omitted.]
(q) In the event the Company seeks to enter into a Business Combination with an entity that is affiliated with the Sponsor and/or any directors or officers of the Company, the Company, or a committee of independent directors, will obtain an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions stating that the consideration to be paid by the Company in such Business Combination is fair to the Company from a financial point of view.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Registration Statement, Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any inves
Appears in 2 contracts
Sources: Underwriting Agreement (Karbon Capital Partners Corp.), Underwriting Agreement (Karbon Capital Partners Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Securities that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i1) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, in each case, other than those entities or individuals that have executed the Insider Letter), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other securities, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer or director of the Company from the 180-day lock-up contained in the Insider Letter.
(j2) The Company and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning agrees with each of the Act), or use any Underwriters to cause each Directed Unit Participant who purchases over $1,000,000 of Reserved Units to execute a lock-up agreement (a “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Final Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (KINS Technology Group, Inc.), Underwriting Agreement (KINS Technology Group, Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, 158 (which may be satisfied through the by filing with the Commission’s ▇▇▇▇▇ system its Annual Report on Form 10-K).
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any other securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement or the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing or submission with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Global Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states; and any filings required to be made with FINRA (including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities provided that the cost of a journey in a vehicle carrying members of the Company and members of the Underwriters shall be shared equally between the Company and the Underwriters; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. For a period commencing on the Effective Date and ending upon the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Units under the provisions of the Exchange Act. During such applicable period, the Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement to the extent such information or documents are not otherwise publicly available. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website or otherwise available on the Company’s website will be considered furnished for the purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it, or a committee of its independent and disinterested directors, obtains an opinion from an independent investment banking firm that is a member of FINRA or from an independent accounting firm that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final Prospectus.Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affilia
Appears in 2 contracts
Sources: Underwriting Agreement (SK Growth Opportunities Corp), Underwriting Agreement (SK Growth Opportunities Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, lend or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms thereof, the resale of the securities covered thereby, (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, and (5) publicly announce the Company’s intention to do any of the foregoing. or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including United States and Cayman Islands counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $50,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final ProspectusCompany shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $50,000 per month for office space, administrative and support services pursuant to the Administrative Services Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applicat
Appears in 2 contracts
Sources: Underwriting Agreement (AfterNext HealthTech Acquisition Corp.), Underwriting Agreement (AfterNext HealthTech Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesCredit Suisse Securities (USA) LLC, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter; provided that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Insider Letter or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Insider Letter with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K referenced in the immediately prior sentence.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities, secretarial support and administrative services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Co
Appears in 2 contracts
Sources: Underwriting Agreement (Talon 1 Acquisition Corp), Underwriting Agreement (Talon 1 Acquisition Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of the Securities, 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 any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Securities Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Business Day set forth Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on Schedule I heretoexercise of the option provided for in Section 2(b) hereof, (3) transfer Founder Shares to directors, employees and executive officers of GP Investments, Ltd., the Company or their respective affiliates; provided that in the case of any transfer pursuant to this clause (3), each transferee shall execute and deliver to the Representative a lock-up letter in a form reasonably acceptable to the Representative and (4) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares and the Private Placement Warrants.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Act) Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offer or offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the NASDAQ Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such memorandum, registration and qualification); (vii) any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including United States and Cayman Islands counsel) for the Company; (x) any fees charged by investment rating agencies in connection with the Offering; (xi) fees and expenses of any trustee or other agents (including the reasonable and documented fees and expenses of their counsel) retained by or on behalf of the Company; and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which Report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of five (5) years from the Effective Date or until such earlier time that the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company will furnish to the Representative such copies of financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities and such additional documents and information with respect to the Company as the Representative may from time to time reasonably request. Any financial statements and reports filed on the Commission’s E▇▇▇▇ website will be considered furnished for purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company under the Services Agreement be more than U.S.$10,000 per month in the aggregate for office space, utilities, secretarial support and administrative services until the earlier of the date of the consummation of the Business Combination or the Liquidation; and
(q) Other than payments made pursuant to the terms of the Services Agreement and except as set forth in this subsection, the Company shall not pay the Sponsor or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation of any kind (including finder’s fees and consulting fees) for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and the amount of interest income that may be released from the Trust Account as described in the Registration Statement, and (ii) may be repaid loans as described in the Registration Statement.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representative and its counsel a notification prior to entering into the agreement or transaction relating to a potential Business C
Appears in 2 contracts
Sources: Underwriting Agreement (GP Investments Acquisition Corp.), Underwriting Agreement (GP Investments Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the- Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement or (y) release the Sponsor or any officer, until director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter; provided, however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof,, (3) issue securities in connection with the initial Business Day set forth on Schedule I heretoCombination, (4) issue up to 1,500,000 additional warrants with the terms identical to the Private Placement Warrants, at a price of $1.00 per warrant, for the repayment of loans, which may be made by the Sponsor or an affiliate of the Sponsor or any of the officers or directors of the Company, to finance transaction costs in connection with the initial Business Combination and (5) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates, if any, for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on The NASDAQ Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including the reasonable and documented FINRA-related fees and expenses of counsel for the Underwriters not to exceed $25,000); (vii) all fees, expenses and disbursements relating to background checks of the Company’s officers and directors (which fees and disbursements shall not exceed $35,000); (viii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, the shares of Common Stock and the Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, the shares of Common Stock or the Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Audited Balance Sheet. Additionally, if not disclosed on such Current Report on Form 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and the Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and the Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless the Company, or a committee of its independent directors, obtains an opinion from an independent investment banking firm which is a Member, or an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as d
Appears in 2 contracts
Sources: Underwriting Agreement (Industrea Acquisition Corp.), Underwriting Agreement (Industrea Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on NASDAQ; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other than compensation prior to, or in connection with any services rendered in order to effectuate the Final Prospectusconsummation of the Company’s initial Business Combination (regardless of the type of transaction that it is); provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to the Company’s formation and initial public offering and to identifying, investigating and completing an initial business combination, (ii) may be repaid loans as described in the Registration Statement, (iii) may receive payments under the Services Agreement and (iv) may receive a payment in connection with the successful completion of the Company’s initial Business Combination, which payment will not be made from the proceeds from the Offering held in the Trust Account prior to the consummation of the Business Combination.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Pr
Appears in 2 contracts
Sources: Underwriting Agreement (Belong Acquisition Corp.), Underwriting Agreement (Belong Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesDeutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Global Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any investm
Appears in 2 contracts
Sources: Underwriting Agreement (Gores Holdings IX, Inc.), Underwriting Agreement (Gores Holdings IX, Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of the Securities, 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 any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Securities Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Business Day set forth Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on Schedule I heretoexercise of the option provided for in Section 2(b) hereof (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares and the Private Placement Warrants.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the NASDAQ Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states (including filing fees and fees for counsel for the Underwriters relating to such memorandum, registration and qualification in an aggregate amount previously agreed upon between the Company and the Representative); (vii) any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) The Company agrees to pay (1) all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Unit Program, (2) all costs and expenses incurred by the Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of the Directed Unit Program material and (3) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Unit Program.
(l) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(m) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which Report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(n) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(o) For a period of five (5) years from the Effective Date or until such earlier time that the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company will furnish to the Representative such copies of financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities and such additional documents and information with respect to the Company as the Representative may from time to time reasonably request. Any financial statements and reports filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for purposes of this section.
(p) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(q) In no event will the amounts payable by the Company under the Services Agreement be more than $10,000 per month in the aggregate for office space, utilities, secretarial support and administrative services until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(r) Other than payments made pursuant to the terms of the Services Agreement and except as set forth in this subsection, the Company shall not pay the Sponsor or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation of any kind (including finder’s fees and consulting fees) for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and the amount of interest income that may be released from the Trust Account as described in the Registration Statement and (ii) may be repaid loans as described in the Registration Statement.
(s) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(t) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representative and its counsel a notification prior to entering into the agreement or transaction relating to a potential Business Combination: (i) the identity of t
Appears in 2 contracts
Sources: Underwriting Agreement (Boulevard Acquisition Corp.), Underwriting Agreement (Boulevard Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company pursuant to Rule 433 under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any investment banking, financial, ad
Appears in 2 contracts
Sources: Underwriting Agreement (Holicity Inc.), Underwriting Agreement (Holicity Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsors or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsors or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsors or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other than compensation prior to, or in connection with any services rendered in order to effectuate the Final consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is); provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to the Company’s formation and initial public offering and to identifying, investigating and completing an initial business combination, (ii) may be repaid loans as described in the Registration Statement and (iii) may receive a payment in connection with the successful completion of the Company’s initial Business Combination, which payment will not be made from the proceeds from the Offering held in the Trust Account prior to the consummation of the Business Combination.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 60 days following the Effectiv
Appears in 2 contracts
Sources: Underwriting Agreement (Logistics Innovation Technologies Corp.), Underwriting Agreement (Logistics Innovation Technologies Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, lend or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell or lend the Private Placement Warrants, (2) issue and sell or lend the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, the Forward Purchase Agreement or the Additional Forward Purchase Agreements, in accordance with the terms thereof, the resale of the securities covered thereby, (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, including the Forward Purchase Securities and the Additional Forward Purchase Securities, and (5) publicly announce the Company’s intention to do any of the foregoing. or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $[•]); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including United States and Cayman Islands counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $50,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final ProspectusCompany shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $50,000 per month for office space, administrative and support services pursuant to the Administrative Services Agreement between the Company and an affiliate of the Sponsor.
(r) The
Appears in 2 contracts
Sources: Underwriting Agreement (TPG Pace Tech Opportunities Corp.), Underwriting Agreement (TPG Pace Tech Opportunities Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Representative to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter; provided, that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Insider Letter or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Insider Letter with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes (but, in no event, taxes imposed on the net income of an Underwriter) in connection with the offer or original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq Global Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of a
Appears in 2 contracts
Sources: Underwriting Agreement (Agriculture & Natural Solutions Acquisition Corp), Underwriting Agreement (Agriculture & Natural Solutions Acquisition Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“E▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Letter Agreement; provided, that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Letter Agreement or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Letter Agreement with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes (but, in no event, taxes imposed on the net income of an Underwriter) in connection with the offer or original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other than periodic and special reports as the Final Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) In the event the Company seeks to enter into a Business Combination with an entity that is affiliated with the Sponsor and/or any directors or officers of the Company, the Company, or a committee of independent directors, will obtain an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions stating that the consideration to be paid by the Company in such Business Combination is fair to the Company from a financial point of view.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Registration Statement, Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in
Appears in 2 contracts
Sources: Underwriting Agreement (Rithm Acquisition Corp.), Underwriting Agreement (Rithm Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants, or any other securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement or the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing or submission with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states; and any filings required to be made with FINRA (including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities provided that the cost of a journey in a vehicle carrying members of the Company and members of the Underwriters shall be shared equally between the Company and the Underwriters; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Unit Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Unit Program; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. For a period commencing on the Effective Date and ending upon the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Units under the provisions of the Exchange Act. During such applicable period, the Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement to the extent such information or documents are not otherwise publicly available. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website or otherwise available on the Company’s website will be considered furnished for the purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities, secretarial and administrative support services exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it, or a committee of its independent and disinterested directors, obtains an opinion from an independent investment banking firm that is a member of FINRA or from an independent accounting firm that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final Prospectus.Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for ser
Appears in 2 contracts
Sources: Underwriting Agreement (Fortress Capital Acquisition Corp), Underwriting Agreement (Fortress Capital Acquisition Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Ordinary Shares that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, lend or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Ordinary Shares or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Shares, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, the Forward Purchase Agreement or the Additional Forward Purchase Agreement, in accordance with the terms thereof, the resale of the securities covered thereby, (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, including the Forward Purchase Securities and the Additional Forward Purchase Securities, and (5) publicly announce the Company’s intention to do any of the foregoing. or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including United States and Cayman Islands counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister Ordinary Shares under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company shall retain a transfer agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $50,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final ProspectusCompany shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $50,000 per month for office space, administrative and support services pursuant to the Administrative Services Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Shares recei
Appears in 2 contracts
Sources: Underwriting Agreement (TPG Pace Tech Opportunities II Corp.), Underwriting Agreement (TPG Pace Beneficial II Corp.)
Agreements. The Issuers agree Company covenants and agrees with the several Underwriters Underwriter that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives Underwriter a copy for their its review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives Underwriter reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission requestobjects. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives Underwriter with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Underwriter of such timely filing. The Company and the Guarantors will promptly advise the Representatives Underwriter (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Underwriter so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives Underwriter in such quantities as the Representatives it may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Underwriter of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives Underwriter in such quantities as the Representatives it may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Underwriter an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Underwriter to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Ordinary Shares that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act, without the prior consent of the Underwriter.
(f) The Company will furnish or otherwise make available upon request to the Representatives Underwriter and counsel for the UnderwritersUnderwriter, without charge, signed copies of the Registration Statement (including exhibits thereto) amendments, schedules, and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared Offering. The Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by any of the Underwriters).Regulation S-T.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriter may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesUnderwriter, (x) offer, sell, contract to sell, pledge, pledge or grant any option to purchase or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Ordinary Shares or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Shares, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day Combination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters; provided, that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Insider Letters or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Insider Letters with respect to such Founder Shares at the time of such transfer). The Underwriter in its sole discretion may release or waive the transfer restrictions set forth on Schedule I hereto.herein at any time without notice. The Company agrees not to waive or amend the Insider Letters without the written consent of the Underwriter
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, whether to facilitate the sale or resale of the Underwritten Securities or otherwise in violation of Regulation M, and the Company will comply with all applicable provisions of Regulation M.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes (but, in no event, taxes imposed on the net income of the Underwriter) in connection with the offer or original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including the FINRA-related fees and expenses of the Underwriter’s legal counsel, not to exceed $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriter) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder; and (x) reasonable out-of-pocket expenses of the Underwriter (excluding fees and expenses of counsel for the Underwriter) not to exceed $100,000.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Underwriter.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Underwriter, furnish to the Underwriter copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Underwriter promptly furnish to the Underwriter: (i) copies of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Underwriter may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) In connection with the Business Combination, the Company shall (i) provide, or cause any Target Business to provide, to the Underwriter and its representatives, customary documentation, including (A) all financial and other records, including any financial forecasts or projections, (B) pertinent corporate documents, (C) material contracts, (D) documents and information contained in the virtual data room used in connection with the Business Combination, and (E) any other information, certifications or documentation reasonably requested by the Underwriter and its representatives with respect to the parties to the Business Combination Agreement, in each case other than case, with reasonable advance opportunity to review the Final Prospectus.foregoing; (ii) cause appropriate officers, directors and employees
Appears in 2 contracts
Sources: Underwriting Agreement (Helix Acquisition Corp. II), Underwriting Agreement (Helix Acquisition Corp. II)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of the Securities, 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 any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Issuers be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) issue Ordinary Shares or any securities convertible into, or exchangeable for, Ordinary Shares in connection with the initial Business Day set forth Combination and (4) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares, the Private Placement Warrants and the Ordinary Shares issuable upon exercise thereof.
(h) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates, if any, for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on Schedule I heretothe NASDAQ Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including the reasonable and documented FINRA-related fees and expenses of counsel for the Underwriters not to exceed $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including U.S. and Cayman Islands counsel and any other local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(j) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the initial Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of an initial Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of an initial Business Combination) without the prior written consent of the Representative.
(k) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing Form 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which Report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(l) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the initial Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the Guarantors mailing, if any, of quarterly financial information to shareholders.
(m) For a period of five (5) years from the Effective Date or until such earlier time that the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company will not, furnish to the Representative such copies of financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities and such additional documents and information with respect to the Company as the Representative may from time to time reasonably request. Any financial statements and reports filed on the Commission’s E▇▇▇▇ website will be considered furnished for purposes of this Section 5.
(n) For a period commencing on the Effective Date and ending at any least five (5) years from the date of the consummation of the initial Business Combination or until such earlier time at which the Liquidation occurs or after the execution Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(o) In no event will the amounts payable by the Company under the Services Agreement be more than $10,000 per month in the aggregate for office space, secretarial and administrative services until the earlier of the date of the consummation of the initial Business Combination or the Liquidation.
(p) Other than payments made pursuant to the terms of the Services Agreement and except as set forth in this Agreementsubsection, directly the Company shall not pay the Sponsor or indirectlyany of the Company’s executive officers, offer directors or sell any Securities by means of their respective affiliates any fees or compensation of any “prospectus” kind (within including finder’s fees and consulting fees) for services rendered to the meaning Company prior to, or in connection with, the consummation of an initial Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and the amount of interest income that may be released from the Trust Account as described in the Registration Statement and (ii) may be repaid loans and advances as described in the Registration Statement.
(q) The Company will apply the net proceeds from the Offering and the sale of the ActPrivate Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 90 days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Company, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representative and its counsel a notification prior to entering into the agreement or use any “prospectus” transaction relating to a potential Business Combination: (within i) the meaning identity of the Actperson or entity providing any such services; (ii) complete details of all such services and copies of all agreements governing such services; and (iii) justification as to why the value received by any person or entity for such services is not underwriting compensation for the Offering. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the tender offer materials or proxy statement, as applicable, which the Company may file in connection with the offer initial Business Combination for purposes of offering redemption of shares held by its shareholders or for soliciting shareholder approval, as applicable.
(s) The Company shall advise FINRA, the Representative and its counsel if it is aware that any 5% or greater shareholder of the Company becomes an affiliate or associated person of a Member participating in the distribution of the Company’s Securities.
(t) The Company shall cause the proceeds of the Offering and the sale of the Securities, in each case other than the Final Prospectus.Private Placement Warrants to be held
Appears in 2 contracts
Sources: Underwriting Agreement (GTY Technology Holdings Inc.), Underwriting Agreement (GTY Technology Holdings Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or con
Appears in 2 contracts
Sources: Underwriting Agreement, Underwriting Agreement (Gores Metropoulos, Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives with a copy for their review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives in such quantities as the Representatives may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Securities and on the initial resale thereof by the Underwriters and on the execution and delivery of this Agreement. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(h) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters.
(j) The Company and the Guarantors will not, at any time at or after the execution of this Agreementnot take, directly or indirectly, offer any action designed to or sell any Securities by means that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any “prospectus” (within the meaning security of the ActCompany to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including U.S. and Cayman Islands counsel and any local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(l) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(m) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(p) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other than the Final Prospectus.compensation prior to, or in connectio
Appears in 2 contracts
Sources: Underwriting Agreement (North Atlantic Acquisition Corp), Underwriting Agreement (North Atlantic Acquisition Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Units upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares, or Warrants under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Units and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors without obtaining an opinion from an independent investment banking firm or an independent valuation or accounting firm that such initial business combination or transaction is fair to the Company from a financial point of view.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representatives and their counsel a notification prior to entering into the agreement or transaction relating to a potential Business Combination: (i) the identity of the
Appears in 2 contracts
Sources: Underwriting Agreement (Constellation Acquisition Corp I), Underwriting Agreement (Constellation Acquisition Corp I)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Representative to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter; provided, that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Insider Letter or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Insider Letter with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes (but, in no event, taxes imposed on the net income of an Underwriter) in connection with the offer or original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder; and provided that the Underwriters shall make a payment to the Company at the closing of the Offering to reimburse certain of the Company’s expenses and fees in connection with the Offering in an amount equal to 0.5% of the gross proceeds of the Offering.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $30,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) In the event the Company seeks to enter into a Business Combination with an entity that is affiliated with the Sponsor and/or any directors or officers of the Company, the Company, or a committee of independent directors, will obtain an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions stating that the consideration to be paid by the Company in such Business Combination is fair to the Company from a financial point of view.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consi
Appears in 2 contracts
Sources: Underwriting Agreement (Churchill Capital Corp IX/Cayman), Underwriting Agreement (Churchill Capital Corp IX/Cayman)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Stockholder Rights Agreement, in accordance with the terms of the Registration and Stockholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Common Stock (or such other security into which shares of Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Common Stock under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $10,000 per month for office space, utilities and secretarial and administrative support pursuant to the Administrative Support Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from th
Appears in 2 contracts
Sources: Underwriting Agreement (Conyers Park II Acquisition Corp.), Underwriting Agreement (Conyers Park II Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other than compensation prior to, or in connection with any services rendered in order to effectuate the Final consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is); provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to the Company’s formation and initial public offering and to identifying, investigating and completing an initial business combination, (ii) may be repaid loans as described in the Registration Statement and (iii) may receive a payment in connection with the successful completion of the Company’s initial Business Combination, which payment will not be made from the proceeds from the Offering held in the Trust Account prior to the consummation of the Business Combination.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 60 days following
Appears in 2 contracts
Sources: Underwriting Agreement (Priveterra Acquisition Corp.), Underwriting Agreement (Priveterra Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Units upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nadaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares, or Warrants under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Units and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm, or from an independent accounting firm that commonly renders valuation opinion for the type of company we are seeking to acquire, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any investment banking,
Appears in 2 contracts
Sources: Underwriting Agreement (Sports Ventures Acquisition Corp.), Underwriting Agreement (Sports Ventures Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, lend or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, the Forward Purchase Agreement or the Additional Forward Purchase Agreements, in accordance with the terms thereof, the resale of the securities covered thereby, (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, including the Forward Purchase Securities and the Additional Forward Purchase Securities, and (5) publicly announce the Company’s intention to do any of the foregoing. or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $[●]); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including United States and Cayman Islands counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $50,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final ProspectusCompany shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $50,000 per month for office space, administrative and support services pursuant to the Administrative Services Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will app
Appears in 2 contracts
Sources: Underwriting Agreement (TPG Pace Beneficial Finance Corp.), Underwriting Agreement (TPG Pace Beneficial Finance Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company pursuant to Rule 433 under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement or the Forward Purchase Agreement, as applicable, in accordance with the terms of the Registration Rights Agreement or Forward Purchase Agreement, respectively, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, including the Forward Purchase Shares, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to U.S. $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed U.S. $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm, or from another independent entity that commonly renders valuation opinions, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants and the Forward Purchase Shares received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting
Appears in 2 contracts
Sources: Underwriting Agreement (Investindustrial Acquisition Corp.), Underwriting Agreement (Investindustrial Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $10,000 per month for office space, utilities and secretarial and administrative support pursuant to the Administrative Support Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption
Appears in 2 contracts
Sources: Underwriting Agreement (Conyers Park Acquisition Corp.), Underwriting Agreement (Conyers Park Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the- Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representative; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and, (4) issue securities in connection with a Business Day set forth Combination, or or (y) release the Sponsor or any officer, director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter; provided, however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on Schedule I heretoexercise of the option provided for in Section 2 hereof, (3) issue securities in connection with the initial Business Combination, (4) issue up to 1,500,000 additional warrants with the terms identical to the Private Placement Warrants, at a price of $1.00 per warrant, for the repayment of loans, which may be made by the Sponsor or an affiliate of the Sponsor or any of the officers or directors of the Company, to finance transaction costs in connection with the initial Business Combination and (5) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on The NASDAQ Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount not to exceed $15,000); (vii) all fees, expenses and disbursements relating to background checks of the Company’s officers and directors; (viii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, the shares of Common Stock and the Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, the shares of Common Stock or the Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Audited Balance Sheet. Additionally, if not disclosed on such Current Report on Form 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and the Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and the Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless the Company, or a committee of its independent directors, obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, d
Appears in 2 contracts
Sources: Underwriting Agreement (Gordon Pointe Acquisition Corp.), Underwriting Agreement (Gordon Pointe Acqusition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction or the institution or threatening of any proceeding for any such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, but in any event not later than sixteen (16) months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under Rule 433 under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, charge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 5 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Stock Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Public Warrants cease to be publicly traded, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units (until the consummation of the Business Combination), Ordinary Shares or Warrants under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Public Warrants cease to be publicly traded, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives, copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to furnish to or file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (▇▇▇▇▇) website will be considered furnished or delivered for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, secretarial and administrative support services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions for the type of company the Company is seeking to acquire, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other than compensation in connection with any services rendered in order to effectuate the Final Prospectuscompleted of the Business Combination, except as disclosed in the Registration Statement.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a m
Appears in 2 contracts
Sources: Underwriting Agreement (TB SA Acquisition Corp), Underwriting Agreement (TB SA Acquisition Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will shall not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives with a copy for their review prior to filing and will shall not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will shall cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will shall provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will shall promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of Statement, any notice objecting to its use or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade at such time, not misleading, the Company will shall (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company shall promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of Section 5(a), an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(ed) As soon as practicable, the Company will shall make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided that the Company will be deemed to have furnished such statements to its security holders and the Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, which may Analysis, and Retrieval system (“E▇▇▇▇”) or any successor system.
(e) The Company shall not make any offer relating to the Securities or the Common Stock or Warrants included therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will shall furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will shall pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will shall arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will designate and shall maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will shall not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing or confidential submission (or participation in the filingfiling or confidential submission) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors exchangeable for, shares of Common Stock (other than the Securitiesincluding shares of Class B Common Stock and Class F Common Stock) or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Underwritten Securities subject to the terms and conditions hereof and the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, (4) register with the Commission pursuant to the Warrant Agreements, in accordance with the terms of the Warrant Agreements, the issuance of the shares of Common Stock to be issued upon exercise of the Warrants, and (5) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, provided, further, however, that the foregoing restrictions shall not apply to (A) the issuance of Class F Common Stock to a current or future independent director of the Company in amounts substantially consistent with the grants made prior to the Offering upon forfeiture by the Sponsor of an identical number of Class F Common Stock pursuant to its terms and (B) the issuance of shares of Class A Common Stock or Class B Common Stock upon the conversion or exchange of shares of Class B Common Stock or Class F Common Stock in accordance with their terms as of the date hereof, as applicable; or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company shall not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities (except for any net income taxes imposed on the Underwriters as a result of any present or former connection (other than any connection resulting from the transactions contemplated by this Agreement) between the Underwriters and the Guarantors will not, at any time at jurisdiction imposing such tax); (iv) the printing (or after the execution reproduction) and delivery of this Agreement, directly Agreement and all other agreements or indirectly, offer documents printed (or sell any Securities by means of any “prospectus” reproduced) and delivered in connection with the Offering; (within v) the meaning registration of the Act), or use any “prospectus” (within Securities and the meaning Common Stock and Warrants included as part of the ActSecurities under the Exchange Act and the listing of the Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities and the Common Stock and Warrants included as part of the Securities for offer and sale under the securities or blue sky laws of the several U.S. states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; (ix) all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Unit Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Unit Program; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company shall not deregister the Units or shares of Common Stock under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Audited Balance Sheet. Additionally, if not disclosed on the Current Report on Form 8-K referred to in the immediately preceding sentence, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and other reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and other reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities in each case their capacities as such; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other than additional documents referred to in the Final Prospectus.preceding sentence filed on E▇▇▇▇ will be considered
Appears in 2 contracts
Sources: Underwriting Agreement (Nabors Energy Transition Corp.), Underwriting Agreement (Nabors Energy Transition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the- Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and, (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space and secretarial and administrative services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final ProspectusCompany shall not pay the Sponsor or its affiliates or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; (iii) may receive customary financial advisory fees in connection with a Business Combination; and (iv) may be paid $10,000 per month for office space, utilities, secretarial support and administrative services pursuant to the Administrative Services Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prosp
Appears in 2 contracts
Sources: Underwriting Agreement (Gores Holdings, Inc.), Underwriting Agreement (Gores Holdings, Inc.)
Agreements. (a) The Issuers agree Company agrees with the several Underwriters that:
(ai) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereof to become effective. Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless without the Company has furnished to prior consent of the Representatives a copy for their review prior to filing and will (which consent shall not file any such proposed amendment be unreasonably delayed or supplement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission requestwithheld). Subject to the foregoing sentence, if the Registration Statement has become or 14 14 becomes effective pursuant to Rule 430B430A, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (iA) when the Final Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (B) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiC) when, prior to termination of the offering of each series of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iiiD) of any request by the Commission or its staff for any amendment of the Registration Statement or for any supplement to the Final Prospectus or for any additional informationinformation with respect to the Registration Statement or the Prospectus, (ivE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (vF) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuanceif issued, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicablepossible the withdrawal thereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives 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 Representatives in such quantities as the Representatives may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) (i) of this Section 5(a)5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(eiii) As soon as reasonably practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the 15 15 provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may be satisfied through the filing with the Commission of reports required 158 under the Exchange Act.
(fiv) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing the Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(gv) The Company will arrange, if necessary, cooperate with the Representatives and counsel for the qualification of each series of Underwriters in order to register or qualify the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such registrations or qualifications in effect so long as reasonably required for the distribution of such series of the Securities and will pay any the fee of FINRA the National Association of Securities Dealers, Inc. in connection with its review of the offering; provided provided, however, that in no event shall the Issuers Company be obligated to register or qualify to do business in any jurisdiction where it is not now so qualified as a foreign corporation or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(hvi) Each The Company will not, for a period of 120 days following the Company and the Guarantors agree thatExecution Time, unless it has or shall have obtained without the prior written consent of Salomon Brothers Inc ("Salomon Brothers"), offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the Representativesoffering of, any other shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock; provided, however, that the Company may grant options and each Underwriterissue and sell Common Stock pursuant to any employee stock option plan, severally stock ownership plan or stock purchase plan of the Company in effect at the Execution Time and not jointly, the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(b) Each Selling Stockholder agrees with the Company thatseveral Underwriters that they will not during the period of 120 days following the Execution Time, unless it has without the prior written consent of Salomon Brothers, offer, sell or shall have obtainedcontract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any other shares of Common Stock beneficially owned by such 16 16 person, or any securities convertible into, or exchangeable for, shares of Common Stock, other than shares of Common Stock disposed of as bona fide gifts or pledges where the recipients of such gifts or the pledgees, as the case may be, agree in writing with the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required Underwriters to be filed bound by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company or the Guarantors (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company and the Guarantors will not, at any time at or after the execution terms of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” paragraph (within the meaning of the Actb), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Final Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (McLeod Inc), Underwriting Agreement (McLeod Inc)
Agreements. The Issuers agree Company agrees with the several U.S. Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesU.S. Shares, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or the ADS Registration Statement or supplement (including to the Final U.S. Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives U.S. Underwriters a copy for their review prior to filing and will not file any such proposed amendment or supplement to which the U.S. Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final U.S. Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the U.S. Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the U.S. Representatives of such timely filing. The Company and the Guarantors will promptly advise the U.S. Representatives (i) when the Final U.S. Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or the ADS Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of Securitiesthe U.S. Shares, any amendment to the Registration Statement or the ADS 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, the ADS Registration Statement or any Rule 462(b) Registration Statement, or for any supplement to the Final U.S. Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or of any notice objecting to its their use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities U.S. Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective its commercially 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 or ADS Registration Statement and, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or the ADS Registration Statement or a new registration statement and using their its commercially reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final U.S. Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the U.S. Representatives 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 Representatives U.S. Underwriters in such quantities as the Representatives they may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities U.S. Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which either of the Final U.S. Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement either of the Final U.S. Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the U.S. Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final U.S. Prospectus to the Representatives U.S. Underwriters in such quantities as the Representatives they may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, U.S. Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may be satisfied through the filing with the Commission of reports required under the Exchange Act.
(fe) The Company will furnish or otherwise make available upon request to the U.S. Representatives and counsel for the U.S. Underwriters, without charge, signed copies of the Registration Statement and the ADS Registration Statement (including exhibits thereto) and to each other U.S. Underwriter a copy of the Registration Statement and the ADS Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an a U.S. Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) by the Act, as many copies of each U.S. Preliminary Prospectus, the Final U.S. Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the U.S. Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(gf) The Company will arrange, if necessary, for the qualification of each series of the Securities U.S. Shares for sale under the laws of such jurisdictions as the U.S. Representatives may reasonably designate, designate and will use commercially reasonable efforts to maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringU.S. Shares; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesU.S. Shares, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(ig) The Company and the Guarantors will not, without the prior written consent of the RepresentativesCitigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement (other than any S-8 Registration Statement relating to the Company’s equity incentive plans) with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt Ordinary Shares or ADSs or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or ADSs; or publicly announce an intention to effect any such transaction, until for a period of 90 days after the Business Day date of the Underwriting Agreements, provided, however, that the Company may (i) issue and sell Ordinary Shares pursuant to any employee stock option plan, non-employee incentive warrants plan, free shares plan, employee warrants (BSPCE), stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) issue Ordinary Shares issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, and (iii) offer, issue and sell shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock in connection with any acquisition or strategic investment (including any joint venture, strategic alliance or partnership) as long as (x) the aggregate number of shares of Common Stock issued or issuable does not exceed 5% of the number of shares of Common Stock outstanding immediately after the issuance and sale of the U.S. Shares, and (y) each recipient of any such shares or other securities agrees to restrictions on the resale of securities that are consistent with the lock-up letters described in Section 6(o) hereof for the remainder of the 90-day restricted period.
(h) If Citigroup Global Markets Inc., in its sole discretion, agrees to release or waive the restrictions set forth on Schedule I heretoin a lock-up letter described in Section 6(o) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(i) The Company will not take, directly or indirectly, without giving effect to the actions of the U.S. Underwriters, any action designed to or that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Ordinary Shares or the ADSs.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, each Prospectus, each Issuer Free Writing Prospectus, the ADS Registration Statement, and each amendment or supplement to any of them; (ii) the preparation of the Deposit Agreement, the deposit of the Underlying Shares under the Deposit Agreement, the issuance thereunder of ADSs representing such deposited Underlying Shares, the issuance (if applicable) of ADRs evidencing such ADSs and the Guarantors fees of the Depositary; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, each Prospectus, the ADS Registration Statement, and each Issuer Free Writing Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the U.S. Shares; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the U.S. Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the U.S. Shares; (v) the printing (or reproduction) and delivery of the Master Agreement, including these U.S. Underwriting Terms, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the U.S. Shares; (vi) the registration of the U.S. Shares under the Exchange Act and the listing of the ADSs on the NASDAQ Stock Market; (vii) any registration or qualification of the U.S. Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the U.S. Underwriters relating to such registration and qualification); (viii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the U.S. Underwriters relating to such filings); provided, however, that the reasonable fees and expenses of counsel for the U.S. Underwriters related to subclauses (vii) and (viii) of this Section 5(j) shall not exceed $15,000; (ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the U.S. Shares (but specifically excluding the travel and lodging expenses of the U.S. Representatives); provided, however, that the Company shall be responsible for half of the cost and expenses of any aircraft chartered in connection with the “road show” for the U.S. Shares and the U.S. Underwriters shall be responsible for the balance; (x) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) The Company agrees that, unless it has or shall have obtained the prior written consent of the U.S. Representatives, and each U.S. Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will notnot make any offer relating to the U.S. Shares 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 Company with the Commission or retained by the Company 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 3 to the Master Agreement or any electronic roadshow. Any such free writing prospectus consented to by the U.S. Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(l) The Company will notify promptly the U.S. Representatives if the Company ceases to be an Emerging Growth Company at any time at or after prior to the execution later of this Agreement, directly or indirectly, offer or sell any Securities by means (a) completion of any “prospectus” (the distribution of the U.S. Shares within the meaning of the Act), or use any “prospectus” Act and (within the meaning b) completion of the Act90-day restricted period referred to in Section 5(g) hereof.
(m) If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary in connection with order to make the offer or sale statements therein in the light of the Securitiescircumstances under which they were made at such time not misleading, the Company will (i) notify promptly the U.S. Representatives so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the U.S. Representatives in each case other than the Final Prospectussuch quantities as may be reasonably requested.
Appears in 2 contracts
Sources: Master Underwriting Agreement, Master Underwriting Agreement (DBV Technologies S.A.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will shall not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives with a copy for their review prior to filing and will shall not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will shall cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will shall provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will shall promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of Statement, any notice objecting to its use or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will shall (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company shall promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of Section 5(a), an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(ed) As soon as practicable, the Company will shall make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided that the Company will be deemed to have furnished such statements to its security holders and the Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, which may Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company shall not make any offer relating to the Securities or the Ordinary Shares or Warrants included therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will shall furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will shall pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will shall arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will designate and shall maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will shall not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing or confidential submission (or participation in the filingfiling or confidential submission) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors exchangeable for, Ordinary Shares (other than the Securitiesincluding Founder Shares, Placement Units and Placement Warrants) or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Placement Units, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, (4) register with the Commission pursuant to the Warrant Agreement, in accordance with the terms of the Warrant Agreement, the issuance of the Ordinary Shares to be issued upon exercise of the Warrants, and (5) issue securities in connection with a Business Day set forth on Schedule I heretoCombination; provided, further, that the foregoing shall not apply to the forfeiture of any Founder Shares pursuant to their terms; or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company shall not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Act) Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offer or offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities and the Ordinary Shares and Warrants included as part of the Securities under the Exchange Act and the listing of the Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities and the Ordinary Shares and Warrants included as part of the Securities for offer and sale under the securities or blue sky laws of the several U.S. states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount not to exceed to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company shall not deregister the Units or Ordinary Shares under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Audited Balance Sheet. Additionally, if not disclosed on the Current Report on Form 8-K referred to in the immediately preceding sentence, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other than periodic and other reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and other reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities in their capacities as such; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on ▇▇▇▇▇ will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company shall not agree to pay amounts for office space, administrative and support services in excess of $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company shall not consummate its initial Business Combination with any company or business that is affiliated with the Sponsor or any of the Company’s officers or directors unless the Company (or a committee of independent and disinterested directors) obtains an opinion from an independent investment banking firm that is a Member or an independent accounting firm, that such initial Business Combination is fair to the Company from a financial point of view. Except for payments by the Company pursuant to the Administrative S
Appears in 2 contracts
Sources: Underwriting Agreement (GoGreen Investments Corp), Underwriting Agreement (GoGreen Investments Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the- Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) ), or confidential submission, of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and (ii) may be repaid loans as described in the Registration Statement.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide
Appears in 2 contracts
Sources: Underwriting Agreement (Nebula Caravel Acquisition Corp.), Underwriting Agreement (Nebula Caravel Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares and the Private Placement Warrants or the Warrants and shares of Common Stock issuable upon exercise of the Private Placement Warrants and the Warrants that may be issued upon conversion of working capital loans, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor, S▇▇▇▇ or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing or submission with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states (including filing fees and fees for counsel for the Underwriters relating to such memorandum, registration and qualification in an aggregate amount previously agreed upon between the Company and the Representatives); (vii) any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings up to U.S. $25,000); (viii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) fees and expenses of any trustee (including the fees and expenses of their counsel); and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use commercially reasonable efforts to maintain the registration of the Units, Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing Form 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time that the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company will furnish to the Representatives such copies of financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities and such additional documents and information with respect to the Company as the Representatives may from time to time reasonably request. Any financial statements and reports filed on the Commission’s E▇▇▇▇ website will be considered furnished for purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space and secretarial and administrative services exceed U.S. $15,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA or from an independent accounting firm that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Company shall not pay the Sponsor or its affiliates or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; (iii) may receive customary financial advisory fees in connection with a Business Combination; and (iv) may be paid U.S. $15,000 per month pursuant to the Services Agreement for office space and secretarial and administrative services.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case other than the Final Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Diamond Eagle Acquisition Corp. \ DE), Underwriting Agreement (Diamond Eagle Acquisition Corp. \ DE)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.. Credit Suisse Securities (USA) LLC [●], 2020
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, Credit Suisse Securities (USA) LLC [●], 2020 including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Securities upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 5(b) of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Credit Suisse Securities (USA) LLC [●], 2020
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Curent Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K reference in the immediately prior sentance.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholder.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Credit Suisse Securities (USA) LLC [●], 2020 Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm, or from another independent entity that commonly renders valuation opinions, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material
Appears in 2 contracts
Sources: Underwriting Agreement (Turmeric Acquisition Corp.), Underwriting Agreement (Turmeric Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the- Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including United States and Cayman Islands counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final ProspectusCompany shall not pay the Sponsor or its affiliates or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; (iii) may receive customary financial advisory fees in connection with a Business Combination; and (iv) may be paid $10,000 per month for office space, administrative and support services pursuant to the Administrative Services Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospect
Appears in 2 contracts
Sources: Underwriting Agreement (Pace Holdings Corp.), Underwriting Agreement (Pace Holdings Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) ), or confidential submission, of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Units upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Common Stock and Warrants (or such other security into which the Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with an exchange of the Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Units and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm that commonly renders valuation opinions for the type of company we are seeking to acquire, that such Business Combination is fair to the Company from a financial point of view. Other than payments made pursuant to the Advisory Agreement, the Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the identifying, investigating and completing Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and (ii) may be repaid loans as described in the Registration Statement.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 60 days following the Effective Date, in each case other than the Final Prospectus.event any person or entity (regardless of any FINRA affiliation or association) is enga
Appears in 2 contracts
Sources: Underwriting Agreement (Forest Road Acquisition Corp. II), Underwriting Agreement (Forest Road Acquisition Corp. II)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffered Shares, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or the ADR Registration Statement or supplement (including to the Final Prospectus or the Spanish Documents or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will cause the Nota sobre las Acciones to be filed in a form approved by the Representatives with the CNMV pursuant to the Spanish Act on the Closing Date and will provide evidence satisfactory to the Guarantors Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or ADR Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of Securitiesthe Offered Shares, any amendment to the Registration Statement or the ADR 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 the ADR Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or of any notice objecting to their use or the institution or threatening of any proceeding for that purpose, (v) of the issuance by the CNMV or any court of competent jurisdiction of any stop order suspending the effectiveness of the Folleto or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (vvi) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities Offered Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective 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, the ADR Registration Statement or the Folleto and, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives 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 Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at If during (1) any time when a prospectus relating to the Securities Offered Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) or (2) the Stabilization Period, any event occurs as a result of which the Final Prospectus or the Folleto as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange rules thereunder, or to amend the Spanish Documents to comply with the Spanish Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the CommissionCommission or the CNMV, as the case may be, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus or Folleto to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may be satisfied through the filing with the Commission of reports required 158 under the Exchange Act.
(fe) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, upon request, signed copies of the Registration Statement and the ADR Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement and the ADR Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), ) as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto thereto, and of each of the Spanish Documents as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(gf) The Company will use its reasonable best efforts to arrange, if necessary, for the qualification of each series of the Securities Offered Shares for sale under (or obtain exemptions from the application of) the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringOffered Shares; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesOffered Shares, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(ig) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), ) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt Class A Shares, Class B Shares or ADSs or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Class A Shares, Class B Shares or ADSs; or publicly announce an intention to effect any such transaction, from the date of this Underwriting Agreement to 180 days following the date of commencement of trading of the ADSs on the Nasdaq Global Select Market, provided, however, that the Company may issue and sell (i) the Offered Shares and the Offered Notes; (ii) Class B Shares upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and upon the conversion of the Offered Notes, including, without limitation, upon the conversion of Class A Shares into Class B Shares pursuant to the right of conversion approved by the Extraordinary General Shareholders’ Meeting of the Company on September 20, 2012 in connection with the increase in the Company’s Class B share capital; and (iii) Class A Shares, Class B Shares or ADSs pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, including, without limitation, pursuant to the filing by the Company of any registration statement on Form S-8 with the Commission relating to the offering of securities pursuant to the terms of such incentive or similar plans. Notwithstanding the foregoing, if (x) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day restricted period, the restrictions imposed in this clause shall continue to apply until the Business Day 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 will provide the Representatives and any Underwriters and each individual subject to the restricted period pursuant to the lock-up letters described in Section 6(s) hereof with prior notice of any such announcement that gives rise to an extension of the restricted period.
(h) 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.
(i) If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth on Schedule I heretoin the lock-up letters described in Section 6(s) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three Business Days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(j) The Company and the Guarantors will not, at any time at or after the execution of this Agreementnot take, directly or indirectly, offer any action designed to or sell any Securities by means that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any “prospectus” (within the meaning security of the ActCompany to facilitate the sale or resale of the Class B Shares or the ADSs, nor will it engage in any course of conduct in breach of applicable Spanish regulations on market abuse including the Spanish Act as developed by Royal Decree 1333/2005 (Real Decreto 1333/2005, de 11 de noviembre, por el que se desarrolla ▇▇ ▇▇▇ ▇▇/▇▇▇▇, ▇▇ ▇▇ ▇▇ ▇▇▇▇▇, del ▇▇▇▇▇▇▇ de Valores, en materia de abuso ▇▇ ▇▇▇▇▇▇▇).
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Disclosure Package, the Prospectus and each Issuer Free Writing Prospectus, the ADR Registration Statement, and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning preparation, printing or reproduction and filing with the CNMV of the ActSpanish Documents (including financial statements and exhibits thereto and each amendment or supplement to them); (iii) the preparation of the Deposit Agreement, the deposit of the Underlying Shares under the Deposit Agreement, the issuance thereunder of ADSs representing such deposited Underlying Shares, the issuance of ADRs evidencing such ADSs and the fees of the Depositary; (iv) the preparation of the Stock Loan Agreement; (v) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, the ADR Registration Statement, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offer or offering and sale of the SecuritiesOffered Shares; (vi) the preparation, printing, authentication, issuance and delivery of certificates for the Offered Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Offered Shares; (vii) the printing (or reproduction) and delivery of this Underwriting Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Offered Shares; (viii) the registration of the Offered Shares with the Mercantile Registry and Iberclear; (ix) the registration of the Class B Shares under the Exchange Act and the listing of the Offered Shares on the Madrid and Barcelona Stock Exchanges and the ADSs on the Nasdaq Global Select Market or any other stock exchange; (x) any registration or qualification of the Offered Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification); (xi) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings); (xii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Offered Shares, including any road show presentation; (xiii) the fees and expenses of the Company’s accountants, the fees and expenses of the auditors appointed by the Mercantile Registry for the purpose of issuing the special report pursuant to articles 308 and 506 of the Spanish Capital Companies Act and the reasonable and documented fees and expenses of counsel (including local and special counsel) for the Company; (xiv) the fees and expenses of U.S. and Spanish counsel for the Underwriters up to the amounts separately agreed by such counsel and the Company, and the fees and expenses of Canadian and any other local counsel for the Underwriters, (xv) the reasonable and documented out-of-pocket expenses of the Underwriters that shall have been incurred by them in connection with the proposed purchase and sale of the Offered Shares, including the transportation and other expenses incurred by or on behalf of the Underwriters representatives in connection with presentations to prospective purchasers of the Offered Shares (including expenses incurred in connection with any road show presentation, to the extent such expenses were previously estimated and communicated to the Company); and (xvi) all other duly-justified costs and expenses incident to the performance by the Company of their obligations hereunder.
(l) The Company 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 Company that, unless it has or shall have obtained, as the case other than may be, the Final Prospectus.prior written consent of the Company, it has not made and will not make any offer relating to the Offered Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing pro
Appears in 2 contracts
Sources: Underwriting Agreement (Abengoa Sa), Underwriting Agreement (Abengoa Sa)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Ordinary Shares that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Ordinary Shares or any other securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Shares, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement or the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter; provided that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Insider Letter or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Insider Letter with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing or submission with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Global Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states; and any filings required to be made with FINRA (including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities provided that the cost of a journey in a vehicle carrying members of the Company and members of the Underwriters shall be shared equally between the Company and the Underwriters; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Ordinary Shares under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. During such applicable period, the Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement to the extent such information or documents are not otherwise publicly available. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website or otherwise available on the Company’s website will be considered furnished for the purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company shall retain a transfer agent.
(p) In no event will the amounts payable by the Company for office space, administrative and support services exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it, or a committee of its independent and disinterested directors, obtains an opinion from an independent entity that commonly renders valuation opinions or from an independent accounting firm that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final Prospectus.Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to identifying, investigating an
Appears in 2 contracts
Sources: Underwriting Agreement (Fortress Value Acquisition Corp. V), Underwriting Agreement (Fortress Value Acquisition Corp. V)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Issuers be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.[Reserved]
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms or any transfer of Founder Shares to any current or future independent director of the Company (provided that to the extent any Section 16 reporting obligation is triggered as a result of such transfer, such Section 16 filing shall include a practical explanation as to the nature of the transfer) and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including United States and Cayman Islands counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination or after a deregistration in connection with the initial Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with the initial Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the Audited Balance Sheet) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities in each case their capacity as such; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Final ProspectusCompany shall not pay the Sponsor or its affiliates or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; (iii) may receive customary financial advisory fees in connection with a Business Combination; and (iv) may be paid $10,000 per month for office space, utilities and secretarial support pursuant to the Administrative Services Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption Use of Proceeds in the Statutory Prospectus and the Prospect
Appears in 2 contracts
Sources: Underwriting Agreement (Saban Capital Acquisition Corp.), Underwriting Agreement (Saban Capital Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives Representative with a copy for their review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives Representative reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission requestobjects. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives Representative in such quantities as the Representatives Representative may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives Representative in such quantities as the Representatives Representative may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) Reserved.
(h) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters.
(j) The Company and the Guarantors will not, at any time at or after the execution of this Agreementnot take, directly or indirectly, offer any action designed to or sell any Securities by means that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any “prospectus” (within the meaning security of the ActCompany to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including any local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(l) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(m) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(p) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other than compensation prior to, or in connection with any services rendered in order to effectuate the Final Prospectusconsummation of the Company’s initial Business Combination (regardless of the type of transaction that it is); provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses related to the Company’s formation and initial public offering and to identifying, investigating and completing an initial business combination, (ii) may be repaid loans as described in the Registration Statement and (iii) may receive a payment in connection with the successful completion of the Company’s initial Business Combination, which payment will not be made from the proceeds from the Offering held in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of t
Appears in 2 contracts
Sources: Underwriting Agreement (Industrial Tech Acquisitions II, Inc.), Underwriting Agreement (Industrial Tech Acquisitions II, Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesDeutsche Bank Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any invest
Appears in 2 contracts
Sources: Underwriting Agreement (Gores Holdings VI, Inc.), Underwriting Agreement (Gores Holdings VI, Inc.)
Agreements. (a) The Issuers agree with the several Underwriters thatDepositor agrees as follows:
(ai) Prior To prepare the Preliminary Prospectus and the Prospectus in a form approved by the Underwriters; to file such Preliminary Prospectus pursuant to Rule 433(d) under the Securities Act not later than the same day on which the Preliminary Prospectus was made available to the Underwriters; to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the second Business Day following the day on which the Prospectus was made available to the Underwriters; to make no further amendment or supplement to the Registration Statement or to the Prospectus prior to the Closing Date except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective prior to the termination of the offering of the Securities, neither Underwritten Certificates or any supplement to the Company nor any Guarantor will file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) amended Prospectus has been filed and to furnish the Base Prospectus unless the Company has furnished Underwriters or their counsel with copies thereof without charge; to the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors will cause the Final Prospectus, properly completed, promptly all reports and any supplement thereto definitive proxy or information statements required to be filed in a form approved by the Representatives Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or l5(d) of the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory Exchange Act subsequent to the Representatives date of such timely filing. The Company and the Guarantors will Prospectus and, for so long as the delivery of a prospectus is required in connection with the offering or sale of the Underwritten Certificates; to promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination Underwriters of the offering its receipt of each series of Securities, 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 for any supplement to the Final Prospectus or for any additional information, (iv) notice of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or of or, to the knowledge of the Depositor, the threatening of any proceeding for that purpose and such purpose, or of: (vi) any order preventing or suspending the use of the receipt by Preliminary Prospectus or the Company or a Guarantor of any notification with respect to Prospectus; (ii) the suspension of the qualification of the Securities Underwritten Certificates for offering or sale in any jurisdiction jurisdiction; (iii) the initiation of or the institution or threatening threat of any proceeding for any such purposepurpose or (iv) any request by the Commission for the amending or supplementing of the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information. The Company and In the Guarantors will use their respective reasonable best efforts to prevent event of the issuance of any such stop order or the occurrence of any such suspension order preventing or objection to suspending the use of the Registration Statement andPreliminary Prospectus or the Prospectus or suspending any such qualification, upon such issuance, occurrence or notice of objection, will the Depositor promptly shall use their reasonable its best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment the Commission.
(ii) To furnish promptly to the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement or a new registration statement as originally filed with the Commission, and using their reasonable best efforts to have such of each amendment or new registration statement declared effective as soon as practicablethereto filed with the Commission, including all consents and exhibits filed therewith.
(biii) The Company will prepare a final term sheet, containing solely a description of final terms To deliver promptly to the Underwriters without charge such number of the Securities following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case including exhibits); (ii) the offering thereofPreliminary Prospectus, the Prospectus and any amended or supplemented Preliminary Prospectus or Prospectus and (iii) any document incorporated by reference in the Preliminary Prospectus or the Prospectus (including exhibits thereto). If the delivery of a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time prospectus is required by such Rule.
(c) If, at any time prior to the filing expiration of nine months after the Closing Date in connection with the offering or sale of the Final Prospectus pursuant to Rule 424(b)Underwritten Certificates, and if at such time any event occurs events shall have occurred as a result of which the Disclosure Package Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives 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 Representatives in such quantities as the Representatives may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made at when such timeProspectus is delivered, not misleading, or or, if for any other reason it shall be necessary during such same period to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final ProspectusAct, the Company promptly will (i) Depositor shall notify the Representatives of Underwriters and, upon any Underwriter's request, shall file such event, (ii) document and prepare and file with the Commission, subject furnish without charge to the second sentence Underwriters and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of Section 5(a), an amendment amended Prospectus or a supplement or new registration statement to the Prospectus which will correct corrects such statement or omission or effect effects such compliance, and in case the Underwriters are required to deliver a Prospectus in connection with sales of any of the Underwritten Certificates at any time nine months or more after the Effective Time, upon the request of the Underwriters but at their expense, the Depositor shall prepare and deliver to the Underwriters as many copies as the Underwriters may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(iiiiv) use its reasonable best efforts to have To file promptly with the Commission any amendment to the Registration Statement Statement, the Preliminary Prospectus or new registration statement declared effective as soon as practicable the Prospectus or any supplement to the Prospectus that may, in order to avoid any disruption in use the judgment of the Final Prospectus and (iv) supply Depositor or the Underwriters, be required by the Securities Act or requested by the Commission. Neither the Underwriters' consent to nor their distribution of any supplemented Final Prospectus to amendment or supplement shall constitute a waiver of any of the Representatives conditions set forth in such quantities as the Representatives may reasonably requestSection 6.
(ev) As soon as practicable, To furnish the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, to its security holders and to the Representatives, an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Rule 158, which may be satisfied through the filing with the Commission of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Underwriters and counsel for the Underwriters, without chargeprior to filing with the Commission, signed copies and to obtain the consent of the Underwriters for the filing of the following documents relating to the Underwritten Certificates: (i) any Post-Effective Amendment to the Registration Statement or supplement to the Prospectus, or document incorporated by reference in the Prospectus or (including exhibits theretoii) the Preliminary Prospectus and the Prospectus pursuant to each the Rules and Regulations.
(vi) To use commercially reasonable efforts, in cooperation with the Underwriters, to qualify the Underwritten Certificates for offering and sale under the applicable securities laws of such states and other Underwriter a copy jurisdictions of the Registration Statement (without exhibits thereto) andUnited States or elsewhere as the Underwriters may reasonably designate, so and maintain or cause to be maintained such qualifications in effect for as long as delivery may be required for the distribution of a prospectus by an Underwriter the Underwritten Certificates. The Depositor will file or dealer cause the filing of such statements and reports as may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies laws of each Preliminary Prospectusjurisdiction in which the Underwritten Certificates have been so qualified; provided, however, that the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters).
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably Depositor shall not be required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Issuers be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(hvii) Each So long as the Underwritten Certificates shall be outstanding, the Depositor shall cause the Trustee, pursuant to the Pooling and Servicing Agreement, to deliver to the Underwriters as soon as such statements are furnished to the Trustee: (i) the annual statement as to compliance delivered to the Trustee pursuant to Section 3.19 of the Company Pooling and Servicing Agreement; (ii) the annual statement of a firm of independent public accountants furnished to the Trustee pursuant to Section 3.20 of the Pooling and Servicing Agreement; (iii) the monthly servicing report furnished to the Trustee and (iv) the monthly reports furnished to the Certificateholders pursuant to Section 4.02 of the Pooling and Servicing Agreement.
(viii) Unless the Underwriters shall otherwise have given their written consent, no collateralized mortgage obligations or other similar securities representing interests in or secured by other mortgage-related assets originated or owned by the Seller shall be publicly offered or sold, nor shall the Seller enter into any contractual arrangements that contemplate the public offering or sale of such securities, until the earlier to occur of the termination of the syndicate or the Closing Date.
(ix) In connection with any transaction contemplated by this Agreement, the Depositor and each of its affiliates maintain customary, arm's-length business relationships with each Underwriter and each of its affiliates, and no fiduciary duty on the part of any Underwriter or any of its affiliates is thereby or hereby intended or created, and the Guarantors agree that, unless it has or shall have obtained express disclaimer of any such fiduciary relationship on the prior written consent part of the Representatives, each Underwriter and each Underwriter, severally of its affiliates is hereby acknowledged and not jointly, agrees accepted by the Depositor and each of its affiliates.
(x) The Depositor will file or cause to be filed with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities Commission such Free Writing Prospectus that would constitute is either an Issuer Free Writing Prospectus (as defined in Section 5(c) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Securities Act.
(xi) The Depositor shall not be required to file (A) any Free Writing Prospectus, if the information included therein is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that would otherwise constitute relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof (so long as such information does not contain any Issuer Information).
(xii) The Depositor will (i) prepare and file the report required by Item 6.05 of Form 8-K within four business days after the Closing Date if any material pool characteristic in the final pool at the Closing Date varies by 5% or more from the description in the Prospectus Supplement, (ii) comply with required Form 8-K reporting requirements with respect to any prefunding account and (iii) if static pool information required with respect to the Underwritten Certificates is delivered via website, comply with the Rules and Regulations. The Depositor will be responsible for calculating the significance percentage of any derivative contract with respect to the Underwritten Certificates.
(b) Each Underwriter severally represents, warrants, covenants and agrees with the Depositor as to itself that:
(i) Prior to entering into any Contract of Sale, the Underwriter shall convey the Preliminary Prospectus to each prospective investor. The Underwriter shall keep sufficient records to document its conveyance of the Preliminary Prospectus to each potential investor prior to the related Contract of Sale.
(ii) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Certificates, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus.
(iii) An Underwriter may convey a Preliminary Term Sheet to a potential investor prior to entering into a Contract of Sale with such investor; provided, however, that (x) such Underwriter shall not enter into a Contract of Sale with such investor unless the Underwriter has complied with paragraph (i) above prior to such Contract of Sale, (y) such Underwriter shall deliver a copy of the proposed Preliminary Term Sheet to the Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(iv) An Underwriter may convey Computational Materials (x) to a potential investor prior to entering into a Contract of Sale with such investor; provided, however, that (A) such Underwriter shall not enter into a Contract of Sale with such investor unless the Underwriter has complied with paragraph (i) above prior to such Contract of Sale and (B) such Computational Materials shall not be disseminated in a manner reasonably designed to lead to their broad unrestricted dissemination; provided, however, that if such Computational Materials are disseminated in a manner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter shall file with the Commission such Computational Materials, and (y) to an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus required to be filed by the Company with Depositor's counsel prior to the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent scheduled print date of the parties hereto shall Prospectus Supplement, such Underwriter will be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such represented that it did not convey any Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectusany potential investor.” The Company agrees that
(xvi) it has treated and will treat, as the case may be, each Permitted Each Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it shall contain legends substantially similar to the following: The depositor has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of filed a registration statement (including a prospectus) with the Commission SEC for the offering to which this free writing prospectus relates. Before you invest, you should read the prospectus in respect ofthat registration statement and other documents the depositor has filed with the SEC for more complete information about the depositor and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at WWW.SEC.GOV. Alternatively, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Actdepositor, any debt securities issued underwriter or guaranteed ▇▇▇ ▇▇▇▇▇▇ participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[zz-zzz-zzzz]. This free writing prospectus does not contain all information that is required to be included in the Company or the Guarantors (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company base prospectus and the Guarantors will notprospectus supplement. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. The asset-backed securities referred to in this free writing prospectus are being offered when, as and if issued. In particular, you are advised that asset-backed securities, and the asset pools backing them, are subject to modification or revision (including, among other things, the possibility that one or more classes of securities may be split, combined or eliminated), at any time at prior to issuance or after the execution availability of this Agreementa final prospectus. As a result, directly you may commit to purchase securities that have characteristics that may change, and you are advised that all or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning a portion of the Act)securities may not be issued that have the characteristics described in this free writing prospectus. Our obligation to sell securities to you is conditioned on the securities having the characteristics described in this free writing prospectus. If that condition is not satisfied, we will notify you, and neither the issuer nor [the] [any] underwriter will have any obligation to you to deliver all or use any “prospectus” (within the meaning portion of the Act) in connection with the offer or sale securities which you have committed to purchase, and there will be no liability between us as a consequence of the Securitiesnon-delivery. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the asset-backed securities referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such securities, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the securities.
(vii) Any Computational Materials shall include legends, in each case other than addition to those specified in paragraph (vi) above, substantially similar to the Final Prospectus.following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the depositor nor any of its affiliates prepa
Appears in 2 contracts
Sources: Underwriting Agreement (Argent Securities Inc), Underwriting Agreement (Ameriquest Mortgage Securities Inc)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“E▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter; provided, that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Insider Letter or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Insider Letter with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes (but, in no event, taxes imposed on the net income of an Underwriter) in connection with the offer or original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $[●]); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exce
Appears in 2 contracts
Sources: Underwriting Agreement (Decarbonization Plus Acquisition Corp IV), Underwriting Agreement (Decarbonization Plus Acquisition Corp IV)
Agreements. (a) The Issuers agree Company agrees with the several Underwriters that:
(ai) The Company will prepare the Prospectus in a form approved by the Representatives (which approval shall not be unreasonably withheld) and will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereof, to become effective. Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object on the Representatives reasonably object, unless, (i) in the judgment advice of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission requestcounsel. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B430A, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i1) when the Final Registration Statement, if not effective at the Execution Time, shall have become effective, (2) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii3) when, prior to termination of the offering of each series of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv5) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v6) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its best efforts to prevent the issuance of any such stop order or the occurrence suspension of any such suspension or objection to the use of the Registration Statement qualification and, upon such issuanceif issued, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicablepossible the withdrawal thereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives 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 Representatives in such quantities as the Representatives may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i1) notify the Representatives of any such event, (ii2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable 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 use of the Final Prospectus ; and (iv3) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(eiii) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may be satisfied through the filing with the Commission of reports required 158 under the Exchange Act.
(fiv) The Prior to 10:00 A.M., New York City time, on the Business Day next succeeding the date of this Agreement, the Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies Underwriters a copy of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, as promptly as reasonably practical following the date of this Agreement, and from time to time so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant Act, the Company will furnish to Rule 172), the Representatives as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing the Prospectus and any supplement supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters).
(gv) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(ivi) The Company and the Guarantors will not, without the prior written consent of the RepresentativesCitigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), ) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, until for a period of 180 days after the Business Day date of the Prospectus, provided, however, that, subject to the provisions of the next sentence, the Company may (v) file any registration statement on Form S-8; (w) grant employee stock options pursuant to the terms of any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution time; (x) issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time; (y) issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and (z) issue shares of Common Stock or options pursuant to any employee stock option plan as consideration in connection with an acquisition or acquisitions and the registration thereof under the Act, provided that with respect to this clause (z) the recipient agrees in writing to be bound by the restrictions set forth on Schedule I heretoin this paragraph. The Company will cause any employee stock option plan or agreement, stock ownership plan or dividend reinvestment plan in effect at the Execution Time to contain provisions substantially in the form of Exhibit A hereto and will not, without the prior written consent of Citigroup Global Markets, Inc., (1) waive or amend (or permit the waiver or amendment of) such provisions or (2) approve the disposition by any person of any shares of Common Stock granted under such plans as bona fide gifts. In addition, the Company will use its best efforts to obtain executed copies of lockup letters in the form of Exhibit B from all directors and officers (as defined in Rule 16a-1 promulgated by the Commission pursuant to the Exchange Act) of the Company.
(jvii) The Company and the Guarantors will not, at any time at or after the execution of this Agreementnot take, directly or indirectly, offer any action designed to or sell any Securities by means that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(viii) The Company will furnish to its security holders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, security holders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its security holders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail.
(ix) During a period of five years from the effective date of the Registration Statement, the Company will furnish to the Representatives copies of all reports or other communications (financial or other) furnished to security holders, and to deliver to you as soon as they are delivered to the Company’s security holders, (i) copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such other information concerning the business and financial condition of the Company as the Representatives may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission) and otherwise in compliance with Regulation FD.
(x) The Company will use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption “prospectus” Use of Proceeds”.
(xi) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Exchange Act.
(xii) The Company will use its reasonable best efforts to list the Securities on the Nasdaq National Market.
(xiii) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the reproduction and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) all of the commercial airline and hotel expenses incurred by or on behalf of the Company representatives and the Selling Stockholder in connection with presentations to prospective purchasers of the Securities; (ix) one-half of any charter expenses incurred by or on behalf of the Company representatives, the Selling Stockholder or the Underwriters in connection with presentations to prospective purchasers of the Securities; (x) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholder; and (xi) all other costs and expenses incident to the performance by the Company and the Selling Stockholder of their obligations hereunder.
(b) The Selling Stockholder agrees with the several Underwriters that:
(i) The Selling Stockholder will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder) directly or indirectly, or file (or participate in the filing of) a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Act)Exchange Act with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or use publicly announce an intention to effect any “prospectus” such transaction, for a period of 180 days after the date of this Agreement, other than shares of Common Stock disposed of as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth in this paragraph.
(within ii) The Selling Stockholder will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the meaning Exchange Act or otherwise, stabilization or manipulation of the Act) in connection with price of any security of the offer Company to facilitate the sale or sale resale of the Securities.
(iii) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in each case other than the Final Prospectuslight of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Selling Stockholder will notify the Representatives of any such event which comes to the attention of the Selling Stockholder.
Appears in 2 contracts
Sources: Underwriting Agreement (Nptest Holding Corp), Underwriting Agreement (Nptest Holding Corp)
Agreements. The Issuers agree Issuer agrees with the several Underwriters that:
(a) Prior to the termination of the offering of Offering, the Securities, neither the Company nor any Guarantor Issuer will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company Issuer has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors The Issuer will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) under the Securities Act within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors Issuer will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission SEC or its staff for any amendment of the Registration Statement Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors Issuer will use their respective 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.;
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b)) under the Securities Act, any event occurs as a result of which the Disclosure Package would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company Issuer will (i) notify promptly the Representatives 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 Representatives you in such quantities as the Representatives you may reasonably request.;
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (“Rule 172”)), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company Issuer promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.;
(ed) As soon as practicable, the Company Issuer will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), Issuer which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Rule 158, which may be satisfied through the filing with the Commission of reports required 158 under the Exchange Securities Act.;
(fe) The Company Upon request, the Issuer will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company Issuer will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters).Offering;
(gf) The Company Issuer will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will use its reasonable best efforts to maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g) The Issuer will not, without the prior written consent of Citigroup Global Markets Inc. and ▇▇▇▇▇ and Company, LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or any affiliate of the Issuer or any person in privity with the Issuer or any affiliate of the Issuer) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, provided, however, that the Issuer may (i) issue and sell shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for shares of Common Stock) pursuant to any employee stock option plan, incentive plan, employee stock purchase plan, stock ownership plan or dividend reinvestment plan of the Issuer in effect at the Execution Time or described in the Disclosure Package and the Prospectus, (ii) issue Common Stock issuable upon the conversion or exercise of securities or the exercise of warrants outstanding at the Execution Time, (iii) file one or more registration statements on Form S-8, (iv) offer, issue or sell shares of Common Stock, or any securities convertible into, or exercisable or exchangeable for, Common Stock in connection with any merger, acquisition or strategic investment (including any joint venture, strategic alliance, partnership, collaboration, licensing agreement, manufacturing or distribution arrangement or similar transaction) as long as (x) the aggregate number of shares of Common Stock issued or issuable does not exceed 10% of the number of shares of Common Stock outstanding immediately after the Offering and (y) each recipient of any such Common Stock issued or issuable agrees to the restrictions on the resale of securities that are consistent with the lock-up letters described in Section 6(g) hereof for the remainder of the 180-day restricted period.
(h) Each If Citigroup Global Markets Inc. and ▇▇▇▇▇ and Company, LLC, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 6(j) hereof for an officer or director of the Company Issuer and provides the Issuer with notice of the impending release or waiver at least three Business Days before the effective date of the release or waiver, the Issuer agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two Business Days before the effective date of the release or waiver;
(i) The Issuer will not take, directly or indirectly, without giving effect to the activities by the Underwriters, any action designed to or that would constitute or that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Securities;
(j) The Issuer agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Underwriting Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors listing of the Securities on the Nasdaq Global Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings), with such fees and expenses of counsel contained in clauses (vi) and (vii) not to exceed $30,000 in the aggregate; (viii) the transportation and other expenses incurred by or on behalf of Issuer representatives in connection with presentations to prospective purchasers of the Securities; [provided, however, that if the Representatives and the Issuer mutually agree that an aircraft shall be chartered in connection with the “road show” for the Securities, the Issuer shall only be responsible for one-half of the cost and expenses of such aircraft and the Underwriters shall be responsible for the balance]; (ix) the fees and expenses of the Issuer’s accountants and the fees and expenses of counsel (including local and special counsel) for the Issuer; and (x) all other costs and expenses incident to the performance by the Issuer of its obligations hereunder;
(k) The Issuer 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 Company Issuer that, unless it has or shall have obtained, as the case may be, the prior written consent of the CompanyIssuer, it has 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 required to be filed by the Company Issuer with the Commission SEC or retained by the Company Issuer under Rule 433 under the Securities Act (“Rule 433”), other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III heretoII hereto and any electronic road show. Any such Free Writing Prospectus free writing prospectus consented to by the Representatives or the Company Issuer is herein hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company Issuer agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and as the case may be, with the requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the CommissionSEC, legending and record keeping.;
(il) The Issuer will notify promptly the Representatives if the Issuer ceases to be an Emerging Growth Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company or the Guarantors (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company and the Guarantors will not, at any time at or after prior to the execution later of this Agreement, directly or indirectly, offer or sell any (a) completion of the distribution of the Securities by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” Securities Act and (within the meaning b) completion of the Act180-day restricted period referred to in Section 5(g) hereof; and
(m) If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary in connection with order to make the offer or sale statements therein in the light of the Securitiescircumstances under which they were made at such time not misleading, the Issuer will (i) notify promptly the Representatives so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives in each case other than the Final Prospectussuch quantities as may be reasonably requested.
Appears in 2 contracts
Sources: Underwriting Agreement (PhaseBio Pharmaceuticals Inc), Underwriting Agreement
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Underwriters with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Underwriters of such timely filing. The Company and the Guarantors will promptly advise the Representatives Underwriters (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives Underwriters so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives Underwriters of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Underwriters an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Securities Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required under or retained by the Exchange ActCompany pursuant to Rule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriters may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesUnderwriters, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending one hundred eighty (180) days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, including pursuant to any forward purchase agreement entered into prior to a Business Combination, or (y) release the Sponsor or any officer, director or director nominee from the one hundred eighty (180)-day lock-up set forth on Schedule I heretoin Section 4 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation (as defined below) occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Underwriters.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four (4) Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four (4) Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Underwriters, furnish to the Underwriters copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Underwriters, promptly furnish to the Underwriters: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Underwriters may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of sixty (60) days following the Effective Date, in each case other than the Final Prospectus.event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the
Appears in 2 contracts
Sources: Underwriting Agreement (Tishman Speyer Innovation Corp. II), Underwriting Agreement (Tishman Speyer Innovation Corp. II)
Agreements. The Issuers agree Each of the ▇▇▇▇▇▇ Parties, jointly and severally, agrees with the several Underwriters thatas follows:
(a) Prior to the termination of the offering of the SecuritiesUnits, neither the Company nor any Guarantor Partnership will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary ProspectusProspectus Supplement) to the Base Basic Prospectus or any Rule 462(b) Registration Statement unless the Company Partnership has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment or supplement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors The Partnership will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors Partnership will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii) when, prior to termination of the offering of each series of Securitiesthe Units, any amendment to the Registration Statement shall have been filed or become effective, (iiiii) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to that would prevent its use or the institution or threatening of any proceeding for that purpose and (viv) of the receipt by the Company or a Guarantor Partnership of any notification with respect to the suspension of the qualification of the Securities Units for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors Partnership will use their respective reasonable its 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 prevention and, upon such issuance, occurrence or notice of objectionprevention, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionprevention, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will To prepare a final term sheet, to the extent you require us to prepare a term sheet, containing solely a description of final terms of the Securities and the offering thereofUnits, in a form approved by the Representatives you and substantially as attached as Schedule IV hereto and will to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any If there occurs an event occurs or development as a result of which the Disclosure Package would include an untrue statement of a material fact or would omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madethen prevailing, not misleading, the Company Partnership will (i) notify promptly the Representatives 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 Representatives in such quantities as the Representatives may reasonably request.
(d) If, at any time when a prospectus relating to the Securities Units is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company Partnership promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(e) As soon as practicable, the Company Partnership will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Underwriters an earnings statement or statements of the Company Partnership and its subsidiaries (which need not be audited), which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may be satisfied through the filing with the Commission of reports required under the Exchange Act.
(f) The Company Partnership will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary ProspectusProspectus Supplement, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Underwriters may reasonably request. The Company Partnership will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(g) The Company Partnership will arrange, if necessary, for the qualification of each series of the Securities Units for sale under the laws of such jurisdictions as the Representatives Underwriters may reasonably designate, will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities the Units and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Issuers Partnership be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the SecuritiesUnits, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree The Partnership agrees that, unless it has or shall have obtained obtains the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees the Representatives agree with the Company Partnership that, unless it has they have obtained or shall have obtainedwill obtain, as the case may be, the prior written consent of the CompanyPartnership, it neither has not made and will not make any offer relating to the Securities Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus “free writing prospectus” (as defined in Rule 405) required to be filed by the Company Partnership with the Commission or retained by the Company Partnership under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) 5 hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus free writing prospectus consented to by the Representatives or the Company Partnership is herein hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company Partnership agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company Partnership Entities and the Guarantors Waskom will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by any of the Company Partnership Entities or Waskom or any affiliate of any of the Company Partnership Entities or Waskom or any person in privity with any of the Company Partnership Entities or Waskom or any affiliate of any of the Company), Partnership Entities or Waskom) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt other Common Units or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Common Units; or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the Partnership may (A) issue and sell Common Units pursuant to the ▇▇▇▇▇▇ Midstream Partners L.P. Long-Term Incentive Plan and pursuant to distribution reinvestments under a plan maintained by MRMC, and (B) issue Common Units issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(j) The Company Partnership will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Disclosure Package and the Guarantors Final Prospectus.
(k) Prior to the Closing Date or each Option Closing Date, as the case may be, the Partnership will notfurnish to you, at as promptly as possible, copies of any time at unaudited interim consolidated financial statements of the Partnership and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Final Prospectus.
(l) The General Partner will cause the Partnership to comply with all provisions of any undertakings contained in the Registration Statement.
(m) None of the ▇▇▇▇▇▇ Parties or after the execution of this AgreementPrism Gas will take, directly or indirectly, offer any action designed to or sell any Securities by means that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any “prospectus” (within the meaning security of the Act), Partnership to facilitate the sale or use any “prospectus” (within the meaning resale of the ActUnits.
(n) in connection The Partnership will file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are quoted on NASDAQ. The Partnership will use its best efforts to complete the offer or sale inclusion of the SecuritiesUnits on NASDAQ, in subject only to official notice of issuance, prior to the Closing Date.
(o) The Partnership will continue to maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its formation or the rules of any national securities exchange or automated quotation system on which the Common Units are listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Units.
(p) The Partnership will cause each case other than annual report distributed to the Final Prospectussecurity holders of the Partnership to comply with FINRA Rule 2310.
Appears in 2 contracts
Sources: Underwriting Agreement (Martin Midstream Partners Lp), Underwriting Agreement (Martin Midstream Partners Lp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form reasonably approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening in writing of any proceeding for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening in writing of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Public Warrants, Class A Ordinary Shares or any other securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Class A Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Sponsor Private Placement Warrants and the Sponsor Co-Investor Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement or the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor, the Sponsor Co-Investor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing or submission with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Act) Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offer or offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $35,000); (vii) the transportation and other expenses incurred by or on behalf of the Company in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Class A Ordinary Shares and Public Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. For a period commencing on the Effective Date and ending upon the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Units under the provisions of the Exchange Act. During such applicable period, the Company will not deregister the Units, Class A Ordinary Shares or Public Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing Form 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Public Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to the Company’s shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement to the extent such information or documents are not otherwise publicly available. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website or otherwise available on the Company’s website will be considered furnished for the purposes of this Section 5(n).
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Public Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space and administrative and secretarial services exceed $15,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor, the Sponsor Co-Investor or any of the Company’s officers or directors unless it, or a committee of its independent and disinterested directors, obtains an opinion from an independent investment banking firm that is a member of FINRA or from an independent accounting firm that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, or as otherwise contemplated in the Final Registration Statement, Statutory Prospectus., and Prospectus or in the proxy statement related to any Business Combination, the Company shall not pay the Sponsor, the Sponsor Co-Investor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rende
Appears in 2 contracts
Sources: Underwriting Agreement (Andretti Acquisition Corp.), Underwriting Agreement (Andretti Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the- Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the General Disclosure Package would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the General Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the General Disclosure Package to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement or (y) release the Sponsor or any officer, until director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter; provided, however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) issue securities in connection with the initial Business Day set forth on Schedule I heretoCombination, (4) issue up to 1,500,000 additional warrants with the terms identical to the Private Placement Warrants, at a price of $1.00 per warrant, for the repayment of loans, which may be made by the Sponsor or an affiliate of the Sponsor or any of the officers or directors of the Company, to finance transaction costs in connection with the initial Business Combination and (5) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates, if any, for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on The Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount not to exceed $15,000); (vii) all fees, expenses and disbursements relating to background checks of the Company’s officers and directors which fees and disbursements shall not exceed $50,000; (viii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, the shares of Common Stock and the Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, the shares of Common Stock or the Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Audited Balance Sheet. Additionally, if not disclosed on such Current Report on Form 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and the Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and the Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company to an affiliate of the Sponsor for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate from the date hereof until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless the Company, or a committee of its independent directors, obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as contemplated in the Final Registration Statement, the General Disclosure Package and the Prospectus., the Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provi
Appears in 2 contracts
Sources: Underwriting Agreement (LF Capital Acquisition Corp.), Underwriting Agreement (LF Capital Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on Nasdaq; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock (or such other security into which the shares of Common Stock may be exchanged in connection with a Business Combination) and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the -Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from a valuation or appraisal firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is), except as set forth in or contemplated in the Registration Statement, Statutory Prospectus and the Prospectus (exclusive of nay supplement thereto).
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any i
Appears in 2 contracts
Sources: Underwriting Agreement (Integral Acquisition Corp 1), Underwriting Agreement (Integral Acquisition Corp 1)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company pursuant to Rule 433 under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to U.S. $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s E▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed U.S. $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representatives and their counsel a notification prior to ent
Appears in 2 contracts
Sources: Underwriting Agreement (Vector Acquisition Corp), Underwriting Agreement (Vector Acquisition Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Testing-the- Water Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of the Securities, 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, any Rule 462(b) Registration Statement or any Testing-the-Water Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares and the Private Placement Warrants or the Warrants and shares of Common Stock issuable upon exercise of the Warrants and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states (including filing fees and fees for counsel for the Underwriters relating to such memorandum, registration and qualification in an aggregate amount previously agreed upon between the Company and the Representative); (vii) any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings not to exceed $25,000); (viii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative (Attn: Syndicate Manager with a copy to: General Counsel), furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement.
(o) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space and secretarial and administrative services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this subsection, the Company shall not pay the Sponsor or its affiliates or any of the Company’s executive officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may be repaid loans as described in the Registration Statement; (ii) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf, with no cap or ceiling on reimbursement; (iii) may be repaid loans as described in the Registration Statement; (iv) may receive a fee for financial advisory services rendered in connection with the Company’s identification, negotiation and consummation of a Business Combination payable upon closing of the Business Combination, in each case other than an amount not to exceed $3,000,000 in the Final Prospectus.aggregate as described in the Registration Statement; and (v) may be paid $10,000 per month for office space, utilities, secretarial support and administrative services purs
Appears in 2 contracts
Sources: Underwriting Agreement (Global Partner Acquisition Corp.), Underwriting Agreement (Global Partner Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Ordinary Shares that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company pursuant to Rule 433 under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt Ordinary Shares or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Shares, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to U.S. $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed U.S. $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Shares received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days’ following the effective date of the Registration Statement, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to the Representatives and their counsel a notification prior to entering into the agreement or transaction relating to a potential Business Combinatio
Appears in 2 contracts
Sources: Underwriting Agreement (Vector Acquisition Corp II), Underwriting Agreement (Vector Acquisition Corp II)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms or any transfer of Founder Shares to any current or future independent director of the Company (provided that such current or future independent director transferee is subject to the Insider Letter or executes an agreement substantially identical to the Insider Letter, as applicable to directors and officers, at the time of such transfer, and provided further that to the extent any Section 16 reporting obligation is triggered as a result of such transfer, any related Section 16 filing includes a practical explanation as to the nature of the transfer) and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities (and the shares of Common Stock and Warrants included therein) on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the shares of Common Stock (or such other security into which the shares of Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the shares of Common Stock under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K referenced in the immediately prior sentence.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed or furnished on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for administrative and support services exceed $10,000 per month in the aggregate from the date hereof until the earlier of the date of the consummation of the Business Combination and the Liquidation.
(q) The Company will not consummate a Business Combination with an entity that is an affiliate of the Sponsor or any of the Company’s officers or directors unless it, or a committee of independent and disinterested directors, obtains an opinion from an independent investment banking firm, or from another independent entity that commonly renders valuation opinions, that
Appears in 2 contracts
Sources: Underwriting Agreement (Orion Acquisition Corp.), Underwriting Agreement (Orion Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or or, to the Company’s knowledge, threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, or to taxation as a foreign corporation doing business in such jurisdiction, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, in each case, other than those entities or individuals that have executed the Insider Letter), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Class A Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Class A Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use commercially reasonable efforts to maintain the registration of the Class A Ordinary Shares (or such other security into which Class A Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Class A Ordinary Shares under the Exchange Act (except in connection with an exchange of the Class A Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds is reflected in the Audited Balance Sheet included in the Current Report on Form 8-K referenced in the immediately prior sentence.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative services exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors or director nominees unless it or a committee of independent and disinterested members of the Company’s board of directors obtains an opinion from an independent and disinterested investment banking firm or from another independent and disinterested entity that commonly renders valuation opinions, that such initial Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors, director nominees or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors, director nominees and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s
Appears in 2 contracts
Sources: Underwriting Agreement (Waverley Capital Acquisition Corp. 1), Underwriting Agreement (Waverley Capital Acquisition Corp. 1)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, in each case, other than those entities or individuals that have executed the Insider Letter), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other units, shares of Series A common stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Series A common stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Business Day set forth Company may (1) issue and sell the Private Placement Units (including the Private Placement Units that may be issued upon conversion of working capital loans) and the Private Placement Shares and the Private Placement Warrants included therein, (2) issue and sell the Option Securities on Schedule I heretoexercise of the option provided for in Section 2 hereof, (3) issue and sell the Forward Purchase Units, (4) register with the Commission pursuant to the Investor Rights Agreement or the Forward Purchase Agreement, in accordance with the terms of the Investor Rights Agreement, the resale of the securities covered thereby and (5) issue securities in connection with a Partnering Transaction.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Series A common stock (or such other security into which shares of Series A common stock may be exchanged in connection with a Partnering Transaction) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Partnering Transaction. The Company will not deregister the Series A common stock under the Exchange Act (except in connection with an exchange of the shares of Series A common stock pursuant to a Partnering Transaction or a going private transaction after the completion of a Partnering Transaction) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs or the shares of Series A common stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Partnering Transaction or until such earlier time at which the Liquidation occurs or the shares of Series A common stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for the use of certain premises and certain services exceed $40,000 per month in the aggregate until the earlier of the date of the consummation of the Partnering Transaction or the Liquidation.
(q) The Company will not consummate a Partnering Transaction with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Partnering Transaction is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Partnering Transaction; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) with respect to non-employee directors, may receive payments of fees in cash for service on
Appears in 2 contracts
Sources: Underwriting Agreement (Post Holdings Partnering Corp), Underwriting Agreement (Post Holdings Partnering Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
: (a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
. 15 (b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade at such time, not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representative; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
. (dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
. (ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may . (e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
. (f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters).
Offering. (g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company or the Guarantors (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Final Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Learn CW Investment Corp), Underwriting Agreement (Learn CW Investment Corp)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, Representative (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Class A Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Class A Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Shares, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Global Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) [Reserved.]
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Warrants cease to be publicly traded, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Class A Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent entity that commonly renders valuation opinions, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Shares received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final Prospectus.Company, the Company agrees that it shall promptly provide to the Representative and its counsel, prior to entering into the agreement or transaction relating to a Business Combination, a notification that includes: (i) the identity of the person or entity providing any such services; (ii) all such services and copies of all agreements governing such services prior to entering into the agreement or transaction; and (iii) justification as to why the value received by any person or entity for such services is not underwriting compensation for the Offering. The Company also agrees that proper disclosure of such arrangement
Appears in 2 contracts
Sources: Underwriting Agreement (Gores Holdings X, Inc. / CI), Underwriting Agreement (Gores Holdings X, Inc. / CI)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, in each case, other than those entities or individuals that have executed the Insider Letter), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Stockholder Rights Agreement, in accordance with the terms of the Registration and Stockholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer, director or director nominee of the Company from the 180-day lock-up contained in the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $15,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Common Stock (or such other security into which shares of Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Common Stock under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $10,000 per month for office space, utilities and secretarial and administrative support pursuant to the Administrative Support Agreement between the Company and an affiliate of the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use o
Appears in 2 contracts
Sources: Underwriting Agreement (Juniper II Corp.), Underwriting Agreement (Juniper II Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any notice objecting to its use Written Testing-the-Waters Communication, or of the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any other securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants and the Warrants that may be issued upon the conversion of the working capital loans and any Ordinary Shares thereunder, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section [·] of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing or submission with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including U.S., Cayman Islands and any other local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(o) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(p) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(q) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Registration Statement, Statutory Prospectus and the Prospectus.
(r) For a period of 90 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Final ProspectusCompany, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representatives and their counsel a notification prior to entering into the agreement or transaction relating to a potential Business Combination: (i) the identity of the person or entity providing any such services; (ii) complete details of all such services and copies of all agreements governing such services prior to entering into the agreement or transaction; and (iii) justification as to why the value received by any person or entity for such services is not underwriting compensation for the Offering. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the tender offer materials or proxy statement, as applicable, which the Company may file in connection with the Business Combination for purposes of offering redemption of shares held by its shareholders or for soliciting shareholder approval, as applicable.
(s) The Company shall advise FINRA, the Representatives and their counsel if it is aware that any 5% or greater shareholder of the Company becomes an affiliate or associated person of a Member participating in the distribution of the Securities.
(t) The Company shall cause the proceeds of the Offe
Appears in 2 contracts
Sources: Underwriting Agreement (Vy Global Growth), Underwriting Agreement (Vy Global Growth)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company pursuant to Rule 433 under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition services, or has provided or will provide any investment banking, financial, ad
Appears in 2 contracts
Sources: Underwriting Agreement (Colicity Inc.), Underwriting Agreement (Colicity Inc.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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 or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication and, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required or retained by the Company under the Exchange ActRule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants, Rights or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, (4) issue the Working Capital Warrants and (5) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director, director nominee or Advisor from the 180-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Global Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); (ix) the fees and expenses of any trustee, warrant agent, transfer agent or registrar; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares, Rights and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this paragraph 5(n).
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares, Rights and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, secretarial and administrative support services provided to members of the management team exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus, the Company will not pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other than compensation in connection with identifying, investigating and completing the Final ProspectusBusiness Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offerin
Appears in 2 contracts
Sources: Underwriting Agreement (Bleuacacia LTD), Underwriting Agreement (Bleuacacia LTD)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of the Securities, 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 any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) 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 Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Issuers be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, hedge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2(b) hereof, (3) issue shares or any securities convertible into, or exchangeable for, Ordinary Shares in connection with the initial Business Day set forth Combination, (4) issue and sell the Forward Purchase Shares and the Forward Purchase Warrants and (5) register with the Commission pursuant to the Registration Rights Agreement or the Forward Purchase Agreements, as applicable, in accordance with the terms of the Registration Rights Agreement or the Forward Purchase Agreements, as applicable, the resale of the Founder Shares, the Forward Purchase Shares, the Forward Purchase Warrants, the Private Placement Warrants and the Ordinary Shares issuable upon exercise thereof.
(h) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates, if any, for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on Schedule I heretothe NASDAQ Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including the reasonable and documented FINRA-related fees and expenses of counsel for the Underwriters not to exceed $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including U.S. and Cayman Islands counsel and any other local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(j) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the initial Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of an initial Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of an initial Business Combination) without the prior written consent of the Representatives.
(k) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file the Closing Form 8-K with the Commission, which report shall contain the Company’s Audited Balance Sheet. Additionally, if not disclosed on the Closing Form 8-K, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2(b) hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which Report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(l) For a period commencing on the Effective Date and ending at least five (5) years from the date of the consummation of the initial Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the Guarantors mailing, if any, of quarterly financial information to shareholders.
(m) For a period of five (5) years from the Effective Date or until such earlier time that the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company will not, furnish to the Representatives such copies of financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities and such additional documents and information with respect to the Company as the Representatives may from time to time reasonably request. Any financial statements and reports filed on the Commission’s E▇▇▇▇ website will be considered furnished for purposes of this Section 5.
(n) For a period commencing on the Effective Date and ending at any least five (5) years from the date of the consummation of the initial Business Combination or until such earlier time at which the Liquidation occurs or after the execution Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(o) In no event will the amounts payable by the Company under the Services Agreement be more than $10,000 per month in the aggregate for office space, secretarial support and administrative services until the earlier of the date of the consummation of the initial Business Combination or the Liquidation.
(p) Other than payments made pursuant to the terms of the Services Agreement and except as set forth in this Agreementsubsection, directly the Company shall not pay the Sponsor or indirectlyany of the Company’s executive officers, offer directors or sell any Securities by means of their respective affiliates any fees or compensation of any “prospectus” kind (within including finder’s fees and consulting fees) for services rendered to the meaning Company prior to, or in connection with, the consummation of an initial Business Combination; provided, however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account and the amount of interest income that may be released from the Trust Account as described in the Registration Statement and (ii) may be repaid loans and advances as described in the Registration Statement.
(q) The Company will apply the net proceeds from the Offering and the sale of the ActPrivate Placement Warrants and the Forward Purchase Securities received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(r) For a period of 90 days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, or has provided or will provide any investment banking, financial, advisory and/or consulting services to the Company, the Company agrees that it shall promptly provide to FINRA (via a FINRA submission), the Representatives and their counsel a notification prior to entering into the agreement or use any “prospectus” transaction relating to a potential Business Combination: (within i) the meaning identity of the Actperson or entity providing any such services; (ii) complete details of all such services and copies of all agreements governing such services; and (iii) justification as to why the value received by any person or entity for such services is not underwriting compensation for the Offering. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the tender offer materials or proxy statement, as applicable, which the Company may file in connection with the offer initial Business Combination for purposes of offering redemption of shares held by its shareholders or sale of for soliciting shareholder approval, as applicable.
(s) The Company shall advise FINRA, the Securities, in each case other than the Final Prospectus.Representatives and their counsel if
Appears in 2 contracts
Sources: Underwriting Agreement (CF Corp), Underwriting Agreement (CF Corp)
Agreements. The Issuers agree Each of the Company and the Trust agrees with the several Underwriters thatUnderwriters:
(a) Prior to the termination of the offering of the Securities, neither the Company nor any Guarantor will file any amendment of the Registration Statement or supplement (including To cause the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished to the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which the Representatives reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424 as required thereby and promptly to advise the Representatives (A) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424, (iiB) when, prior to termination of the offering of each series of Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (iiiC) of any request by the Commission or its staff for any amendment of the Registration Statement or for any supplement to Statement, the Final Prospectus, the Basic Prospectus or any Interim Prospectus, or for any additional information, (ivD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the qualification of any notice objecting to its use the Declaration, the Guarantee Agreement or the Indenture or the institution or threatening of any proceeding proceedings for that purpose and (vE) of the receipt by the Company or a Guarantor the Trust of any notification with respect to the suspension of the qualification of the Securities or the Debentures for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company ; after the date of this Agreement and prior to the Guarantors will termination of the offering of these Preferred Securities, not to file any amendment of the Registration Statement or amendment or supplement to the Final Prospectus (except an amendment or supplement to the Final Prospectus that is deemed to be incorporated by reference in the Final Prospectus pursuant to Item 12 of Form S-3) without the consent of the Representatives and to use their respective reasonable its 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, upon such issuanceif issued, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicablepossible the withdrawal thereof; prior to receipt of the advice to be given by the Representatives pursuant to Section 5, not to file any document that would be deemed to be incorporated by reference in the Final Prospectus pursuant to Item 12 of Form S-3 without delivering to the Representatives a copy of the document proposed to be so filed, such delivery to be made at least twenty-four hours prior to such filing, and to consult with the Representatives as to any comments which the Representatives make in a timely manner with respect to the document so delivered.
(b) The Company will prepare a final term sheet, containing solely a description of final terms Subject to the last sentence of the Securities and the offering thereofimmediately preceding paragraph, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) Ifif, at any time prior when a prospectus relating to the filing of Securities is required to be delivered under the Final Prospectus pursuant to Rule 424(b)Securities Act, any event occurs as a result of which the Disclosure Package Final Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives so that or if it shall be necessary at any use of the Disclosure Package may cease until it is amended or supplemented; (ii) time to amend or supplement the Disclosure Package Final Prospectus to comply with the Securities Act or the Rules, to promptly prepare and file with the Commission an amendment or supplement which will correct such statement or omission; omission or an amendment which will effect such compliance and to use its best efforts to cause any amendment of the Registration Statement containing an amended Final Prospectus to be made effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i) signed copies of the Registration Statement relating to the Securities and of any amendments thereto (including all exhibits filed with, or incorporated by reference in, any such document) and (iiiii) supply as many conformed copies of the Registration Statement and of any amendment amendments thereto which shall become effective on or supplement to the Representatives in such quantities before each Closing Date (excluding exhibits) as the Representatives may reasonably request.
(d) If, at any time when During such period as a prospectus relating to the Securities is required by law to be delivered under by an Underwriter or dealer, to deliver, without charge to the Act (including in circumstances where Representatives and to Underwriters and dealers, at such requirement office or offices as the Representatives may be satisfied pursuant to Rule 172)designate, as many copies of the Basic Prospectus, any event occurs as a result of which Interim Prospectus and the Final Prospectus as then supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of Section 5(a), an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(e) As soon as practicable, the Company will To make generally available, via available to the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, to its Company's security holders and to the Representatives, Representatives as soon as practicable an earnings statement or statements of the Company and its subsidiaries (which need not be audited)) of the Company and its subsidiaries, covering a period of at least 12 months beginning after the date the Final Prospectus is filed with the Commission pursuant to Rule 424, which will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Rule 158, which may be satisfied through the filing with the Commission of reports required under the Exchange Securities Act.
(f) The Company will To furnish or otherwise make available upon request to the Representatives such information, execute such instruments and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long take such actions as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters).
(g) The Company will arrange, if necessary, for the qualification of each series of qualify the Securities and the Debentures for offering and sale under the laws of such jurisdictions as the Representatives may reasonably designate, will designate and to maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringPreferred Securities; provided provided, however, that in no event neither the Company nor the Trust shall the Issuers be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g) So long as any Preferred Securities are outstanding, to furnish or cause to be furnished to the Representatives copies of all annual reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the commission.
(h) Each If the Company or the Trust has applied for the listing of the Company Preferred Securities on the New York Stock Exchange Inc. (the "NYSE"), to use its best efforts to cause such listing to be approved as soon as possible.
(i) For a period beginning at the time of execution of this Agreement and ending on the Guarantors agree thatlater of the business day following the First Closing Date or following the date on which any price restrictions on the sale of the Preferred Securities are terminated, unless it has or shall have obtained without the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, sell or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate preferred stock of the Company or any person in privity with the Company securities of any business trust or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed other entity controlled by the Company substantially similar to the Preferred Securities or any securities thereof convertible into or exchangeable for or that represent the Guarantors (other than the Securities) or publicly announce an intention right to effect receive any such transaction, until the Business Day set forth on Schedule I heretosecurities.
(j) The Company To use its best efforts to do and perform all things to be done and performed hereunder prior to each Closing Date and to satisfy all conditions precedent to the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning delivery of the Act)Preferred Securities to be purchased hereunder.
(k) To take such steps as shall be necessary to ensure that neither the Company nor the Trust shall become subject to registration as an "investment company" under the Investment Company Act of 1940, or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Final Prospectusas amended.
Appears in 2 contracts
Sources: Underwriting Agreement (Lehman Brothers Holdings Capital Trust V), Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives Underwriters with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Underwriters of such timely filing. The Company and the Guarantors will promptly advise the Representatives Underwriters (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will will: (i) notify promptly the Representatives Underwriters so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will will: (i) notify the Representatives Underwriters of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Underwriters an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Securities Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission of reports required under or retained by the Exchange ActCompany pursuant to Rule 433.
(f) The Company will furnish or otherwise make available upon request to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriters may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesUnderwriters, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending one hundred eighty (180) days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day Combination, or (y) release the Sponsor or any officer, director or director nominee from the one hundred eighty (180)-day lock-up set forth on Schedule I heretoin Section 3 of the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation (as defined below) occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior written consent of the Underwriters.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four (4) Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four (4) Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Underwriters, furnish to the Underwriters copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Underwriters, promptly furnish to the Underwriters: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Underwriters may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm which is a member of FINRA, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. The Company may pay the Sponsor or any of the Company’s officers or directors, or any entity with which they are affiliated, a finder’s fee, consulting fee or other compensation in connection with identifying, investigating and completing the Business Combination; provided, however, that no such payment shall be made from the proceeds of the Offering deposited in the Trust Account prior to the consummation of the Business Combination.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Warrants received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(s) For a period of ninety (90) days following the Effective Date, in each case the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other than the Final Prospectus.merger and acquisition servi
Appears in 2 contracts
Sources: Underwriting Agreement (TS Innovation Acquisitions Corp.), Underwriting Agreement (TS Innovation Acquisitions Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Units (including the Ordinary Shares and the Warrants included therein)that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, charge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration and Shareholder Rights Agreement, in accordance with the terms of the Registration and Shareholder Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with an initial Business Day Combination, provided, further, however, the foregoing shall not apply to the surrender of any Founder Shares pursuant to the terms or any transfer of Founder Shares to any current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Letter Agreement at the time of such transfer and as long as, to the extent any reporting obligation under Section 16 of the Exchange Act is triggered as a result of such transfer, any related filing under Section 16 of the Exchange Act includes a practical explanation as to the nature of the transfer), or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up set forth on Schedule I heretoin Section 5 of the Insider Letter.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities (including the Units and the Guarantors will not, at any time at or after Ordinary Shares and the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within Warrants included in the meaning Units) under the Exchange Act and the listing of the Act)Securities (including the Units and the Ordinary Shares and the Warrants included in the Units) on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Ordinary Shares (or such other security into which the Ordinary Shares may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Ordinary Shares under the Exchange Act (except in connection with an exchange of the Ordinary Shares pursuant to an initial Business Combination or a going private transaction after the completion of an initial Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Current Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K referenced in the immediately prior sentence.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and the Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each case of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Report on Form 10-Q and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other than periodic and special reports as the Final ProspectusCompany from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and the Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $50,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm, or from an independent accounting, valuation or apprai
Appears in 2 contracts
Sources: Underwriting Agreement (Iconic Sports Acquisition Corp.), Underwriting Agreement (Iconic Sports Acquisition Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of to the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto thereto, to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company and the Guarantors will promptly advise the Representatives Representative (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will shall use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives Representative of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representative an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158; provided, which may that the Company will be satisfied through deemed to have furnished such statements to its security holders and the filing Representative to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“▇▇▇▇▇”) or any successor system.
(e) The Company will not make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided provided, however, that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i) The Company and the Guarantors will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other Units, Ordinary Shares, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Units, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Letter Agreement; provided, that the foregoing restrictions shall not apply to the forfeiture of any Founder Shares pursuant to the terms of the Letter Agreement or any transfer of Founder Shares to a current or future independent director of the Company (as long as such current or future independent director is subject to the terms of the Letter Agreement with respect to such Founder Shares at the time of such transfer).
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the Guarantors will notfollowing matters: (i) the preparation, at any time at printing or after reproduction and filing with the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning Commission of the ActRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or use supplement to any “prospectus” of them; (within ii) the meaning printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ActRegistration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes (but, in no event, taxes imposed on the net income of an Underwriter) in connection with the offer or original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount of up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares (or such other security into which such Ordinary Shares may be exchanged in connection with an initial Business Combination) under the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of a Business Combination) without the prior consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Option Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period of at least five (5) years from the Effective Date or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for office space, utilities and secretarial and administrative support exceed $20,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) In the event the Company seeks to enter into a Business Combination with an entity that is affiliated with the Sponsor and/or any directors or officers of the Company, the Company, or a committee of independent directors, will obtain an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions stating that the consideration to be paid by the Company in such Business Combination is fair to the Company from a financial point of view.
(r) The Company will apply the net proceeds from the Offering and the sale of the Private Placement Units received by it in a manner consistent in all material respects with the applications described under the caption “Use of Proceeds” in the Registration Statement, Statutory Prospectus and the Prospectus.
(s) For a period of 60 days following the Effective Date, in each case other than the Final Prospectus.event any
Appears in 2 contracts
Sources: Underwriting Agreement (Bain Capital GSS Investment Corp.), Underwriting Agreement (Bain Capital GSS Investment Corp.)
Agreements. The Issuers agree Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesOffering, neither the Company nor any Guarantor will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus or any Preliminary ProspectusRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished to the Representatives you a copy for their your review prior to filing and will not file any such proposed amendment amendment, supplement or supplement Rule 462(b) Registration Statement to which the Representatives you reasonably object, unless, (i) in the judgment of counsel to the Company, such filing is required by applicable law or (ii) is advisable in furtherance of a Commission request. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Final Prospectus is otherwise required under Rule 424(b), the The Company and the Guarantors will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the offering of each series of SecuritiesOffering, 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, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company or a Guarantor of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the Guarantors will use their respective reasonable its 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, upon such issuance, occurrence or notice of objection, will promptly use their reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using their reasonable its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially as attached as Schedule IV hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Disclosure Package Statutory Prospectus would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package Statutory Prospectus to correct such statement or omissionomission in a form reasonably acceptable to the Representatives; and (iii) supply any amendment or supplement to the Representatives you in such quantities as the Representatives you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Final Prospectus as then supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made at such time, time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, ; (ii) prepare and file with the Commission, subject to the second sentence first two sentences of paragraph (a) of this Section 5(a)5, an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance, ; and (iii) use its reasonable 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 use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives you in such quantities as the Representatives you may reasonably request.
(ed) As soon as practicable, the The Company will make generally available, via the Commission’s Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) System, available to its security holders and to the Representatives, Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited), which that will satisfy the provisions of Section 11(a) of the Act, including, at the option of the Company, Act and Rule 158, which may .
(e) The Company will not make any offer relating to the Securities that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be satisfied through filed by the filing Company with the Commission or retained by the Company under Rule 433 of reports required under the Exchange Act.
(f) The Company will furnish or otherwise make available upon request to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters)Offering.
(g) The Company will arrange, if necessary, for the qualification of each series of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, designate and will maintain such qualifications in effect so long as reasonably required for the distribution of such series of Securities and will pay any fee of FINRA in connection with its review of the offeringSecurities; provided that in no event shall the Issuers Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) Each of the Company and the Guarantors agree 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 Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Company is herein referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and 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.
(i1) The Company and the Guarantors will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge, pledge or otherwise dispose of (or enter into any transaction which that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, in each case, other than those entities or individuals that have executed the Insider Letter), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange ActAct with respect to, any debt other securities, shares of Common Stock, Warrants or any securities issued convertible into, or guaranteed by the Company exercisable, or the Guarantors (other than the Securities) exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transactiontransaction during the period commencing on the date hereof and ending 180 days after the date of this Agreement; provided, until however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Option Securities on exercise of the option provided for in Section 2 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby and (4) issue securities in connection with a Business Day set forth on Schedule I heretoCombination, or (y) release the Sponsor or any officer or director of the Company from the 180-day lock-up contained in the Insider Letter.
(2) Reserved.]
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Securities under the Exchange Act and the Guarantors will not, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Securities by means of any “prospectus” (within the meaning listing of the Act)Securities on NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or use any “prospectus” (within the meaning qualification of the ActSecurities for offer and sale under the securities or blue sky laws of the several states, and any filings required to be made with FINRA (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the offer Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Common Stock (or such other security into which shares of Common Stock may be exchanged in connection with a Business Combination) under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of a Business Combination. The Company will not deregister the Common Stock under the Exchange Act (except in connection with an exchange of the shares of Common Stock pursuant to a Business Combination or a going private transaction after the completion of a Business Combination) without the prior written consent of the Representatives.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 2 hereof, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the SecuritiesOption Securities and its receipt of the proceeds therefrom.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representatives promptly furnish to the Representatives: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representatives may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in each case other than the Final Prospectuspreceding sentence filed on the Commission’s ▇▇▇▇▇ website will be considered furnished for the purposes of this section.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) In no event will the amounts payable by the Company for administrative and support services exceed $10,000 per month in the aggregate until the earlier of the date of the consummation of the Business Combination or the Liquidation.
(q) The Company will not consummate a Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm or another independent entity that commonly renders valuation opinions that such Business Combination is fair to the Company from a financial point of view. The Company shall not pay the Sponsor or its affiliates or any of the Company’s officers, directors or any of their respective affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, the consummation of a Business Combination; provided however, that such officers, directors and affiliates (i) may receive reimbursement for out-of-pocket expenses incurred by them in connection with activities on the Company’s behalf to the extent that such expenses do not exceed the amount of available proceeds not deposited in the Trust Account; (ii) may be repaid loans as described in the Registration Statement; and (iii) may be paid $10,000 per month for administrative and support services pursuant to the Administrative Services Agreement between the Company and the Sponsor.
(r) The Company will apply the net proceeds from the Offering and the sal
Appears in 2 contracts
Sources: Underwriting Agreement (TCW Special Purpose Acquisition Corp.), Underwriting Agreement (TCW Special Purpose Acquisition Corp.)