Covenants. The Pledgor hereby covenants that during the continuance of this Agreement: (a) it shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever; (b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens; (c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor; (d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail; (e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1; (f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and (g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreement.
Appears in 3 contracts
Sources: Pledge and Security Agreement (Knutsen NYK Offshore Tankers As), Pledge and Security Agreement (Knutsen NYK Offshore Tankers As), Pledge and Security Agreement (Knutsen NYK Offshore Tankers As)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this Agreementseveral Underwriters as follows:
(a) it During the period beginning on the date hereof and ending on the later of the Second Closing Date and such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered (assuming the absence of Rule 172 under the Securities Act), in connection with sales by an Underwriter (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462(b) Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company shall warrant and defend its title furnish to the Pledged CollateralUnderwriters for review a copy of each such proposed amendment or supplement, and all material rights the Company shall not file any such proposed amendment or supplement to which the Representative or counsel to the Underwriters reasonably objects. Subject to this Section 4(a), immediately following execution of this Agreement, the Company will prepare the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the Representative and the security interest (including Company may deem appropriate, and if requested by the priority thereof) Representative, an Issuer Free Writing Prospectus containing the selling terms of the Pledgee conferred by this Agreement in Securities and to such other information as the Pledged CollateralCompany and the Representative may deem appropriate, and will file or transmit for filing with the Commission, in each accordance with Rule 424(b) or Rule 433, as the case at the cost may be, copies of the Pledgor against the claims Prospectus and demands of all persons whomsoever;each Issuer Free Writing Prospectus.
(b) except as otherwise permitted in this Agreement or The Company will advise the Finance DocumentsRepresentative, promptly after it shall not sellreceive notice or obtain knowledge thereof, assignof the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, transferor any post-effective amendment thereto, chargeor preventing or suspending the use of any Preliminary Prospectus, pledge the Time of Sale Disclosure Package, the Prospectus or encumber any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any manner any part jurisdiction, or of the Pledged Collateral initiation or suffer threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to exist prevent the issuance of any encumbrance on stop order or to obtain its withdrawal if such a stop order should be issued. Additionally, the Pledged CollateralCompany agrees that it shall comply with the provisions of Rules 424(b), other than Permitted Liens;430A or 430B, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(c) it shall not take from (A) During the Prospectus Delivery Period, the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of will comply as far as it is able with all requirements imposed upon it by the Company to Securities Act, as now and hereafter amended, and by the Pledgor Rules and the Pledgor shall not prove nor have the right of proofRegulations, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event shall occur or condition shall exist as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements and schedules further identifying and describing therein, in the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change light of the location circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Pledgor’s chief executive office, (iiSale Disclosure Package) change of Pledgor’s name, identity to comply with the Securities Act or structure or (iii) reorganization or reincorporation of Pledgor to file under the laws Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of another jurisdiction, in each case from Sale Disclosure Package) or file such document (at the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents expense of the Company that could reasonably be expected Company) so as to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection correct such statement or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement omission or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementeffect such compliance.
Appears in 3 contracts
Sources: Purchase Agreement (Nanosphere Inc), Purchase Agreement (Nanosphere Inc), Purchase Agreement (Nanosphere Inc)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance Underwriters as follows:
(i) During the period beginning on the date hereof and ending on the later of the Second Closing Date and such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered (assuming the absence of Rule 172 under the Securities Act), in connection with sales by an Underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462(b) Registration Statement), the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Underwriters for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative or counsel to the Underwriters reasonably objects. Subject to this Section 4(i), immediately following execution of this Agreement:, the Company will prepare the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the Representative and the Company may deem appropriate, and if requested by the Representative, an Issuer Free Writing Prospectus containing the selling terms of the Securities and such other information as the Company and the Representative may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each Issuer Free Writing Prospectus.
(aii) The Company will advise the Representative, promptly after it shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority receive notice or obtain knowledge thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto, or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A or 430B, as applicable, under the Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(diii) (A) During the Prospectus Delivery Period, the Company will comply as far as it shall furnish to Pledgee is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event shall occur or condition shall exist as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements and schedules further identifying and describing therein, in the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change light of the location circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Pledgor’s chief executive office, (iiSale Disclosure Package) change of Pledgor’s name, identity to comply with the Securities Act or structure or (iii) reorganization or reincorporation of Pledgor to file under the laws Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of another jurisdiction, in each case from Sale Disclosure Package) or file such document (at the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents expense of the Company that could reasonably be expected Company) so as to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection correct such statement or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement omission or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementeffect such compliance.
Appears in 3 contracts
Sources: Purchase Agreement (Clinical Data Inc), Purchase Agreement (G Iii Apparel Group LTD /De/), Purchase Agreement (Micromet, Inc.)
Covenants. The Pledgor hereby covenants that during (i) NewCo agrees that, as long as a Distribution could, in the continuance reasonable discretion of this Agreement:
Parent, be effected, (aA) it NewCo shall warrant (and defend its title shall cause each member of the NewCo Group to) take any action reasonably requested by Parent in order to the Pledged Collateralconsummate a Distribution with Tax-Free Status, and all material rights and the security interest (including the priority thereofB) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it NewCo shall not take from or fail to take any action (and it shall cause the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability members of the Company NewCo Group not to the Pledgor and the Pledgor take or fail to take any action) which action or failure to act could reasonably be expected to prevent Parent from consummating a Distribution with Tax-Free Status; provided that NewCo shall not prove nor have the right be required to make (or cause any Affiliate of proofNewCo to make) any representation or covenant that is inconsistent with historical facts, in competition with the Pledgee, for any monies whatsoever owing from the Company as to the Pledgor, in any insolvency future matters or liquidationevents over which it has no control, or analogous proceedings under any applicable lawwhich it otherwise cannot make in good faith). NewCo agrees that, without Parent’s prior written consent, it will not take (and will cause each member of the Pledgor;
(dNewCo Group not to take) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company action that could reasonably be expected to adversely affect (1) cause Parent to cease to have “control” (within the Pledged Collateralmeaning of Section 368(c) of the Code) of NewCo or (2) result in a Deconsolidation Event, in each case, prior to the Pledgor’s rights Distribution Date.
(ii) In the event of a Distribution, neither Parent (or any member of the Parent Group) nor NewCo (or any member of the NewCo Group) shall take or fail to take any action, or permit or cause any member of the Parent Group or the NewCo Group, respectively, to take or fail to take any action, if such action or failure to act would be inconsistent with or cause to be untrue any material information, covenant or representation in the Pledged CollateralTax Opinion Documents or Private Letter Ruling Documents; provided, that Parent shall have provided NewCo with a copy of any Tax Opinion and Tax Opinion Documents (or portions thereof relating to the validityNewCo Group) or Private Letter Ruling and Private Letter Ruling Documents (or portions thereof relating to the NewCo Group), perfection as applicable. In connection with obtaining any Tax Opinion or priority Private Letter Ruling pursuant to Section 4(a) hereof, Parent shall consult with NewCo and consider in good faith any comments received from NewCo, in each case, to the extent that such Tax Opinion Documents or Private Letter Ruling Documents contain material information, covenants or representations that would reasonably be expected to significantly affect members of the security interests NewCo Group.
(iii) In the event of a Distribution, from and after the Distribution Date, NewCo shall not (A) take any action or permit any member of the Pledgee NewCo Group to take any action, and NewCo shall not fail to take any action or permit any member of the NewCo Group to fail to take any action, in each case, unless such action or failure to act could not reasonably be expected to (1) cause the Distribution to fail to have Tax-Free Status or (2) require Parent or NewCo to reflect a liability or reserve for Income Taxes with respect to the Distribution in its financial statements, or (B) until the first day after the Restriction Period, engage in any transaction that could result in the Pledged Collateral, the rights and remedies NewCo Consolidated Group ceasing to be engaged in any NewCo Active Business for purposes of Section 355(b)(2) of the Pledgee under this Agreement Code. In the event of a Distribution, from and after the Distribution Date, Parent shall not take any action or permit any other Finance Document or their ability member of the Parent Group to exercise take any action, that would reasonably be expected to cause the same, or cause an Event of Default Distribution to occur; andfail to have Tax-Free Status.
(giv) it In the event of a Distribution, from and after the Distribution Date until the first day after the Restriction Period, NewCo shall indemnify not (A) enter into any Proposed Acquisition Transaction or, to the Pledgee fromextent NewCo has the right to prohibit any Proposed Acquisition Transaction, and hold it harmless againstpermit any Proposed Acquisition Transaction to occur (whether by (x) redeeming rights under a shareholder rights plan, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined (y) finding a tender offer to be payable a “permitted offer” under any such plan or otherwise causing any such plan to be inapplicable or neutralized with respect to any Proposed Acquisition Transaction, or (z) approving any Proposed Acquisition Transaction, whether for purposes of Section 203 of the Pledged Collateral DGCL or any similar corporate statute, any “fair price” or other provision of NewCo’s charter or bylaws or otherwise), (B) merge or consolidate with any other Person or liquidate or partially liquidate, (C) in a single transaction or series of transactions (1) sell or transfer (other than sales or transfers of inventory in the ordinary course of business) all or substantially all of the assets held by NewCo at the time of the Distribution (2) sell or transfer 50% or more of the gross assets of a NewCo Active Business or (3) sell or transfer 30% or more of the consolidated gross assets of NewCo and its Subsidiaries (in each case, such percentages to be measured based on fair market value as of the Distribution Date), (D) redeem or otherwise repurchase (directly or through a Subsidiary) any NewCo stock, or rights to acquire NewCo stock, except to the extent such repurchases satisfy Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to the amendment by Revenue Procedure 2003-48), (E) amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the voting rights of NewCo stock (including, without limitation, through the conversion of one class of NewCo stock into another class of NewCo stock), or (F) take any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any representation or covenant made in the Tax Opinion Documents or Private Letter Ruling Documents) which in the aggregate (and taking into account any other transactions described in this subparagraph (iv)) would be reasonably likely to have the effect of causing or permitting one or more Persons to acquire, directly or indirectly, stock representing a Fifty-Percent or Greater Interest in NewCo or otherwise jeopardize the Tax-Free Status of the Distribution, unless, in each case, prior to taking any such action set forth in the foregoing clauses (A) through (F), NewCo shall have requested that Parent obtain a Private Letter Ruling (or, if applicable, a supplemental Private Letter Ruling) from the IRS and/or any other applicable Tax Authority in accordance with Section 4(b) of this Agreement to the effect that such transaction will not affect the Tax-Free Status of the Distribution and Parent shall have received such Private Letter Ruling in form and substance satisfactory to Parent in its reasonable discretion (and in determining whether a Private Letter Ruling is satisfactory, Parent may consider, among other factors, the appropriateness of any underlying assumptions and representations made in connection with such Private Letter Ruling), or NewCo shall provide Parent with an Unqualified Tax Opinion in form and substance satisfactory to Parent in its reasonable discretion (and in determining whether an opinion is satisfactory, Parent may consider, among other factors, the transaction contemplated by this Agreementappropriateness of any underlying assumptions and representations if used as a basis for the opinion), or Parent shall have waived the requirement to obtain such Private Letter Ruling or Unqualified Tax Opinion.
Appears in 3 contracts
Sources: Tax Sharing Agreement (Iac/Interactivecorp), Tax Sharing Agreement (ANGI Homeservices Inc.), Tax Sharing Agreement (ANGI Homeservices Inc.)
Covenants. The Pledgor hereby covenants that during (a) Until the continuance termination of this Agreement in accordance with Section 7, Stockholder agrees as follows:
(i) At any meeting of stockholders of the Company called to vote upon the Merger and the Merger Agreement or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger and the Merger Agreement is sought, Stockholder shall, including by executing a written consent or otherwise participating in a written consent solicitation (to the extent such an action by written consent would be permitted by Section 5.12 of the Merger Agreement, applicable law, the Company’s Restated Certificate of Incorporation and Amended and Restated Bylaws, and the rules and regulations of the New York Stock Exchange) if requested by Parent, vote (or cause to be voted) the Subject Shares (and each class thereof) in favor of the Merger, the adoption by the Company of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement. Notwithstanding the immediately preceding sentence or anything else in this Agreement to the contrary, Stockholder shall not be required to take any action by written consent or to initiate any written consent solicitation with respect to the Merger or the Merger Agreement (and no proxy to act by written consent (as distinguished from a proxy to vote at the Stockholders Meeting) is given by Stockholder under Section 4(a) of this Agreement:
(a) it shall warrant and defend its title unless, within 14 days after the staff of the SEC has indicated to the Pledged CollateralCompany that it either (i) will not review the Proxy Statement or (ii) (if the Proxy Statement is reviewed) has no further comments, the Company has not mailed the Proxy Statement to the Company’s stockholders; provided, further, Stockholder shall not be required to take any action by such a written consent or to initiate such a written consent solicitation (and all material rights no such proxy is given) if a Takeover Proposal has been made and the security interest Board of Directors of the Company (including or the priority thereofSpecial Committee, as applicable) is in the process of (i) furnishing information to, or participating in discussions or negotiations with, the Person making the Takeover Proposal in accordance with Section 4.2(a) of the Pledgee conferred Merger Agreement or (ii) considering in accordance with Section 4.2(b) of the Merger Agreement whether to terminate the Merger Agreement pursuant to Section 7.1(g) thereof to accept a Superior Proposal. The obligation set forth in this Section 3(a)(i) shall continue in full force and effect if the Merger Agreement is amended or otherwise modified in accordance with the terms of the Merger Agreement so long as such amendment or other modification does not reduce the amount of the Merger Consideration or provide that the Merger Consideration shall be payable otherwise than in cash. For the avoidance of doubt, Stockholder shall have no obligation under this Section 3(a)(i) or otherwise to vote in favor of the Merger, the Merger Agreement or the other transactions that it contemplates if the Merger Agreement is amended or otherwise modified, or purportedly amended or otherwise modified, in any manner that is inconsistent with the immediately preceding sentence.
(ii) At any meeting of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which Stockholder’s vote, consent or other approval is sought, Stockholder shall vote (or cause to be voted) the Subject Shares (and each class thereof) against (A) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, tender offer, exchange offer, business combination, sale of substantial assets, reorganization, recapitalization, joint venture, license of Intellectual Property Rights, dissolution, liquidation or winding up of or by this the Company or any other Takeover Proposal (an Alternative Transaction) and (B) any amendment of the Company’s certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of any class of Company Common Stock (a Frustrating Transaction). Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(iii) Stockholder agrees not to (A) sell, transfer, pledge, assign or otherwise dispose of (including by gift, merger or otherwise by operation of law) (collectively, Transfer), or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, the Subject Shares to any person other than pursuant to the terms of the Merger, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Alternative Transaction.
(iv) Stockholder shall not, nor shall it permit any investment banker, attorney or other adviser or representative of Stockholder to, (A) directly or indirectly solicit, initiate, or take any other action knowingly to facilitate any Alternative Transaction or (B) directly or indirectly enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, any Alternative Transaction.
(v) Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the Pledged Collateralother parties in doing, all things necessary, proper or advisable to consummate and make effective, in each case at the cost of most expeditious manner practicable, the Pledgor against Merger and the claims and demands of all persons whomsoever;other transactions contemplated by the Merger Agreement.
(b) except (i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, Stockholder shall pay to Parent on demand an amount equal to 100% of the Profit (determined in accordance with Section 3(b)(ii)) of Stockholder from the consummation of any Alternative Transaction for which a definitive agreement is entered into within one year of such termination. Notwithstanding the foregoing, Stockholder’s obligation pursuant to the preceding sentence shall be reduced by such Stockholder’s Pro Rata Portion of the Rebate Amount. As used herein, the Rebate Amount shall mean 50% of the aggregate Profit realized by the Stockholder and each Person executing an Other Stockholder Agreement from the consummation of any Alternative Transaction; provided, however, that the Rebate Amount shall not exceed $35 million in the aggregate. As used herein, the Pro Rata Portion means the fraction equal to the total number of shares of Company Common Stock held by Stockholder as otherwise permitted in of the date of this Agreement divided by the total number of shares of Company Common Stock held on the date of this Agreement by each Person executing a Stockholder Agreement or an Other Stockholder Agreement.
(ii) For purposes of this Section 3(b), the Profit of Stockholder from any Alternative Transaction shall equal (A) the aggregate consideration received by Stockholder pursuant to such Alternative Transaction, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation, plus (B) the fair market value, on the date of disposition, of all Subject Shares of Stockholder disposed of after the termination of the Merger Agreement and prior to the date of such consummation, less (C) the fair market value of the aggregate consideration that would have been issuable or payable to Stockholder if it had received the Merger Consideration pursuant to the Merger Agreement as originally executed for each of the Subject Shares.
(iii) In the event that (x) prior to the Effective Time, a Takeover Proposal shall have been made and (y) the Effective Time of the Merger shall have occurred and Parent for any reason shall have increased the amount of Merger Consideration payable over that set forth in the Merger Agreement in effect on the date hereof (the Original Merger Consideration), Stockholder shall pay to Parent on demand an amount in cash equal to the product of (i) the number of Subject Shares of Stockholder and (ii) 100% of the excess, if any, of (A) the per share cash consideration or the Finance Documentsper share fair market value of any non-cash consideration, it as the case may be, received by Stockholder as a result of the Merger, as amended, determined as of the Effective Time of the Merger, over (B) the fair market value of the Original Merger Consideration determined as of the time of the first increase in the amount of the Original Merger Consideration.
(iv) For purposes of this Section 3(b), the fair market value of any non-cash consideration consisting of:
(A) a security listed on a national securities exchange or quoted on Nasdaq shall not sellbe equal to the average closing price per share of such security as reported on such national securities exchange or Nasdaq for the five trading days after the date of determination; and
(B) consideration other than cash or securities of the form specified in clause (A) of this Section 3(b)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such banking firm; provided, assignhowever, transferthat if the parties are unable to agree within two Business Days after the date of such event as to such investment banking firm, chargethen the parties shall each select one firm, pledge and those firms shall together select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm(s) shall be borne equally by Parent, on the one hand, and Stockholder, on the other hand. The determination of the investment banking firm shall be final and binding upon the parties.
(v) If some or encumber all of the consideration received by Stockholder in any manner any an Alternative Transaction or as part of the Pledged Collateral Merger Consideration consists of non-cash consideration, then Stockholder shall have the option of satisfying up to the same proportion of its obligations under this Section 3(b) as the non-cash consideration represented of the total consideration in the Alternative Transaction or suffer the total Merger Consideration through the delivery of such non-cash consideration to exist any encumbrance Parent based on the Pledged Collateralfair market value thereof. Any payment of Profit under this Section 3(b) shall (x) if paid in cash, other than Permitted Liens;
be paid by wire transfer of same day funds to an account designated by Parent and (cy) it shall not take from the Company any undertaking or security in respect if paid through a transfer of its liability hereunder or in respect non-cash consideration, be paid through delivery of any other liability of the Company such non-cash consideration to the Pledgor and the Pledgor shall not prove nor have the right of proofParent, in competition with the Pledgee, suitably endorsed for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;transfer.
(f) To the extent permitted by applicable law, Stockholder hereby waives any rights to appraisal or rights to dissent from the Merger that it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee may have under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementapplicable law.
Appears in 3 contracts
Sources: Stockholder Agreement (Infonet Services Corp), Stockholder Agreement (Bt Group PLC), Stockholder Agreement (Infonet Services Corp)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance Dealer Managers, and each of this Agreementthem:
(a) To advise the Dealer Managers, promptly after it shall warrant and defend its title receives notice thereof, of the time when any supplement to the Pledged CollateralProspectus or any amended Prospectus has been filed and to furnish the Dealer Managers with copies thereof; if required, and all material rights and to file the security interest (including Prospectus pursuant to Rule 424(b) under the priority Securities Act within the time prescribed by such rule; to advise the Dealer Managers, promptly after it receives notice thereof) , of the Pledgee conferred issuance by this Agreement the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, of the suspension of the qualification of the Rights, the Preferred Shares or the Conversion Shares for offering or sale in and to any jurisdiction, of the Pledged Collateralinitiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in each case at the cost event of the Pledgor against issuance of any stop order or of any order preventing or suspending the claims and demands use of all persons whomsoeverthe Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) except To deliver promptly to the Lead Dealer Manager, as otherwise permitted representative for the Dealer Managers, in St. Louis, Missouri such number of the following documents as the Lead Dealer Manager shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement Agreement, any other Offer Documents filed as exhibits, the computation of the ratio of earnings to fixed charges and the computation of per share earnings), (ii) each Prospectus and any amended or supplemented Prospectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time during which the Prospectus relating to the Rights or the Finance DocumentsPreferred Shares is required to be delivered under the Securities Act and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall not sellbe necessary during such period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, assignto notify each of the Dealer Managers and, transferupon the request of the Dealer Managers, to file such document and to prepare and furnish, without charge, pledge or encumber in any manner any part to each of the Pledged Collateral Dealer Managers as many copies as such Dealer Manager may from time to time reasonably request of an amended or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Lienssupplemented Prospectus which will correct such statement or omission or effect such compliance;
(c) it shall not take from Prior to filing with the Company Commission any undertaking (i) amendment to the Registration Statement or security in respect of its liability hereunder any document incorporated therein by reference, any supplement to the Prospectus or in respect of any other liability amended Prospectus or (ii) any Prospectus pursuant to Rule 424 promulgated under the Securities Act, to furnish a copy thereof to each of the Company Dealer Managers and counsel for the Dealer Managers and afford them a reasonable opportunity to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgorcomment thereon;
(d) As soon as practicable after the Effective Date of the Registration Statement (it being understood that the Company shall furnish have until at least 410 days after the end of the Company's current fiscal quarter), to Pledgee from time make generally available to time statements the Company's security holders a consolidated earnings statement of the Company and schedules further identifying and describing its Subsidiaries (which need not be audited) complying with Section 11(a) of the Pledged Collateral as Pledgee reasonably requestsSecurities Act, all in reasonable detailincluding, at the option of the Company, Rule 158 promulgated thereunder;
(e) it shall give at least 30 days’ prior written notice to Pledgee For a period of any (i) change three years following the Effective Date of the location Registration Statement, to furnish to each of Pledgor’s chief executive office, (ii) change the Dealer Managers copies of Pledgor’s name, identity all materials furnished by the Company to its shareholders and all public reports filed with the Commission pursuant to the Exchange Act or structure any rule or (iii) reorganization or reincorporation regulation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1Commission thereunder;
(f) it Promptly from time to time to take such action as the Dealer Managers may reasonably request to qualify the Rights, the Preferred Shares and the Conversion Shares for offering and sale under the securities laws of such jurisdictions in the United States as the Dealer Managers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Rights, the Preferred Shares and the Conversion Shares; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any termination of or amendment jurisdiction;
(g) Prior to the Organizational Documents or other organizational documents commencement of the Rights Offering, to apply for the listing of the Rights and the Preferred Shares on the Nasdaq National Market and to use its best efforts to complete that listing, subject only to official notice of issuance, and, prior to the Closing Date, to apply for the listing of the Conversion Shares on the Nasdaq National Market and to use its best efforts to complete that listing, subject only to official notice of issuance;
(h) To take such steps as shall be necessary to ensure that neither the Company that could reasonably nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder;
(i) The Company shall use its reasonable best efforts to cause the mailing of the Offer Documents to record holders of the Common Shares not later than the second calendar day following the Record Date, and complete such mailing as soon as practicable;
(j) The Company shall reserve and keep available for issue upon the exercise of the Rights such number of authorized but unissued shares of Preferred Shares as will be expected sufficient to adversely affect permit the Pledged Collateralexercise in full of all Rights issued, and shall reserve and keep available for issue upon the conversion of such Preferred Shares such number of authorized but unissued Conversion Shares as will be sufficient to permit the conversion in full of such Preferred Shares;
(k) On or prior to the Closing Date, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority Company will also make available to each of the security interests of Dealer Managers all financial and other information concerning its business and operations and the Pledgee in Offering that such Dealer Manager reasonably requests and will provide such Dealer Manager and its advisors with reasonable access to the Pledged CollateralCompany's officers, the rights directors, employees, independent accountants, reserve engineers and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occurlegal counsel; and
(gl) it shall indemnify The Company will treat any advice, written or oral, provided by any Dealer Manager pursuant to this Agreement as confidential, and, except as required by law, such advice will be solely for the Pledgee from, information and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any assistance of the Pledged Collateral or Company in connection with the transaction contemplated Offering and may not be quoted, nor will any such advice or the name of such Dealer Manager be referred to, in any report, document, release or other communication, whether written or oral, prepared, issued or transmitted by this Agreementthe Company or any affiliate, director, officer, employee, agent or representative of any thereof, without, in each instance, such Dealer Manager's prior consent, which consent shall not be unreasonably withheld.
(m) The Company will not consummate the closing of the Offering (the "Closing") unless, pursuant to the Offering, the Company receives gross proceeds of at least $50 million.
Appears in 2 contracts
Sources: Dealer Manager Agreement (Exco Resources Inc), Dealer Manager Agreement (Exco Resources Inc)
Covenants. The Pledgor hereby From the date hereof and until the payment and performance in full of all of the Indebtedness, each Reseller covenants that during the continuance of with CPC that:
a. Until sold as permitted by this Agreement:
, each Reseller shall own all of the Financed Inventory and Accounts belonging to it free and clear of all liens, security interests, claims and other encumbrances, whether arising by agreement or operation of law (acollectively “Liens”) it other than (i) Liens in favor of CPC and Bank Product Provider, (ii) Liens in favor of other persons with respect to which CPC shall warrant have first consented in writing and defend its title which Liens are subject to subordination agreements acceptable to CPC, (iii) Liens granted to the Pledged Collateralsecured parties providing bank financing under the Presidio Credit Agreement, including, without limitation, obligations under cash management services agreements, hedging agreements and all material rights credit card facilities (“Presidio Credit Agreement Liens”), provided, that the Lien of CPC with respect to the Collateral shall have a first priority position and the Presidio Credit Agreement Liens shall also be subject to a subordination agreement in form and substance reasonably satisfactory to CPC, (iv) Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings and for which the applicable Reseller maintains adequate reserves, provided the same have no priority over any of CPC’s security interest interests, (including v) Liens arising from judgments, decrees or attachments arising from circumstances that do not constitute a Default hereunder, for which the priority thereofapplicable Reseller maintains adequate reserves and are inferior to any lien of CPC, (vi) Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the Pledgee conferred applicable Reseller in accordance with GAAP, (vii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by this Agreement in and to appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the Pledged Collateral, in each case at the cost books of the Pledgor against applicable Reseller, (viii) pledges or deposits in the claims ordinary course of business in connection with workers’ compensation, unemployment insurance and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateralother social security legislation, other than any lien imposed by ERISA, (ix) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, security bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business, (x) Liens limited to leased collateral and any insurance proceeds thereof in favor of other persons with respect to capital leases incurred in the ordinary course of business and not having or not reasonably likely to have a Material Adverse Effect, and (xi) other Liens not described above arising in the ordinary course of business and not having or not reasonably likely to have a Material Adverse Effect on such Reseller and which are inferior to any lien of CPC (clauses (i) through (xi) above, collectively, “Permitted Liens;”).
b. Each Reseller will: (c1) keep all Collateral at Permitted Locations and keep all tangible Collateral in good order, repair and operating condition and insured as required herein; (2) promptly file all tax returns required by law and promptly pay all taxes, fees, and other governmental charges for which it shall not take from is liable, including without limitation all governmental charges against the Company any undertaking Collateral; (3) permit CPC and its designees, upon reasonable advance notice, to inspect the Collateral during normal business hours (provided, however, that upon a Default, CPC may inspect the Collateral at such times as CPC determines is necessary or security desirable in respect its sole discretion); (4) keep complete and accurate records of its liability hereunder or in respect of any other liability of business, including inventory and sales, and permit CPC and its designees to inspect and copy such records, if no Default then exists, with CPC providing reasonable advance notice; (5) furnish CPC with such additional information regarding the Company to the Pledgor Collateral and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee such Reseller’s business and financial condition as CPC may from time to time reasonably request (including without limitation financial statements and schedules further identifying and describing more frequently than as described in Section 7 below); (6) immediately notify CPC of the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee occurrence of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity event or structure circumstance that has had or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could would reasonably be expected to adversely affect the Pledged Collateral, the Pledgorhave a Material Adverse Effect; (7) execute all documents CPC requests to perfect and maintain CPC’s rights security interest in the Pledged Collateral; (8) at all times be duly organized, existing, in good standing, qualified and licensed to do business in each jurisdiction in which the validity, perfection nature of its business or priority property so requires except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect; (9) notify CPC of the security interests commencement of the Pledgee any material legal proceedings against either Reseller; and (10) comply in the Pledged Collateralall material respects with all applicable laws, the rights rules and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementregulations.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Presidio, Inc.)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) it shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by For so long as this Agreement is in and to the Pledged Collateraleffect, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this contemplated by the Merger Agreement or the Finance DocumentsExchange Agreement, it shall the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, chargepledge, pledge assignment, hypothecation, encumbrance, tender or encumber in other disposition of (each such disposition or contract, a "Transfer"), any manner any part of Subject Shares or Shares the Pledged Collateral Stockholder then has or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor will have the right of proofto acquire pursuant to options, in competition with the Pledgeewarrants, for any monies whatsoever owing from the Company convertible securities or other such rights to purchase Shares granted to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of Stockholder by the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, Company; (ii) change grant any powers of Pledgor’s nameattorney, identity consents, or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent proxies with respect to any termination of or amendment to the Organizational Documents or other organizational documents shares that then constitute Subject Shares, deposit any of the Company that could reasonably be expected to adversely affect the Pledged CollateralSubject Shares into a voting trust, the Pledgor’s rights in the Pledged Collateral, the validity, perfection enter into a voting or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable option agreement with respect to any of the Pledged Collateral or in connection Subject Shares inconsistent with the transaction Merger Agreement or this Agreement, or otherwise restrict or take any action adversely affecting the ability of the Stockholder freely to exercise all voting rights with respect to the Subject Shares; (iii) subject to Section 8, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal (as defined in the Merger Agreement) or engage in any negotiation concerning, or provide any confidential information or data to, or have any discussions with any person relating to an Acquisition Proposal; and the Stockholder shall notify Recap immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with the Stockholder; or (iv) permit, cause, or take any action, or fail to take any action, which would make any representation, warranty, covenant, or other undertaking of the Stockholder in this Agreement untrue or incorrect or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; PROVIDED, HOWEVER, that nothing in the foregoing provisions of this Section 3 shall prohibit the Stockholder: (i) effecting a transfer to an affiliate or (ii) from effecting any transfer of Subject Shares pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, or for estate planning purposes, if the transferee agrees in writing to be bound by the provisions of this Agreement. As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended.
Appears in 2 contracts
Sources: Voting Agreement (Interdent Inc), Voting Agreement (Green Equity Investors Iii Lp)
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementand agrees with each Representative and each Underwriter that:
(ai) it shall warrant If reasonably requested by you in connection with the offering of the Offered Securities, the Company will prepare a Preliminary Prospectus containing such information concerning the Securities as you and defend its title the Company deem appropriate and (ii) immediately following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement that complies with the Securities Act and the Securities Act Regulations and that sets forth the number or principal amount of Securities covered thereby, the names of the Underwriters participating in the offering and the number or principal amount of Securities which each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the Securities as you and the Company deem appropriate in connection with the offering of the Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Pledged CollateralCommission for filing pursuant to Rule 424 under the Securities Act and will furnish to the Underwriters named therein as many copies of any Preliminary Prospectus, and all material rights the Prospectus and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Prospectus Supplement as you shall reasonably request.
(b) except If at any time when the Prospectus is required by the Securities Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as otherwise permitted a result of which it is necessary, in this Agreement the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances under which they were made, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act or the Finance DocumentsSecurities Act Regulations, it the Company will promptly prepare and file with the Commission, subject to Section 4(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall not sell, assign, transfer, charge, pledge or encumber in any manner any part constitute a waiver of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;conditions set forth in Section 5.
(c) it shall not take from During the period when the Prospectus is required by the Securities Act to be delivered in connection with sales of the Offered Securities, the Company any undertaking will, subject to Section 4(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or security in respect of its liability hereunder or in respect of any other liability 15(d) of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Exchange Act.
(d) it During the period between the date of the applicable Terms Agreement and the Closing Date, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, will furnish you with copies of any such amendment, supplement or other document and will not file any such amendment, supplement or other document in a form to which you or your counsel shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;object.
(e) it shall give at least 30 days’ prior written During the period when the Prospectus is required by the Securities Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice to Pledgee of any in writing, (i) change of the location effectiveness of Pledgor’s chief executive office, any amendment to the Registration Statement; (ii) change of Pledgor’s name, identity the mailing or structure the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; (iii) reorganization of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or reincorporation the Prospectus Supplement; (iv) of Pledgor under any request by the laws Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus; and (v) of another the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, in each case from or of the information specified in Part B institution or threatening of Schedule 1;any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, the Company will use every reasonable effort to obtain the lifting thereof at the earliest possible moment.
(f) it shall not consent The Company has furnished or will furnish to any termination of or amendment to the Organizational Documents or other organizational documents you as many copies of the Company that could Registration Statement as originally filed and of all amendments thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act) and copies of all consents and certificates of experts as you may reasonably be expected request, and has furnished or will furnish to adversely affect the Pledged Collateralyou, the Pledgor’s rights in the Pledged Collateralfor each other Underwriter, the validity, perfection or priority one copy of the security interests Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andProspectus but without exhibits).
(g) it shall indemnify The Company will use its reasonable best efforts to qualify the Pledgee fromOffered Securities and, and hold it harmless againstif applicable, any and all liabilities with respect toDebt Securities, Preferred Stock or resulting from any delay in paying, any and all stamp, excise, sales or other taxes Common Stock which may be payable issuable pursuant to the exercise of the applicable Warrants and Capital Securities into or determined for which the Subordinated Debt Securities are convertible and the Capital Securities, other preferred stock or Debt Securities into which the shares of Preferred Stock are convertible for offering and sale under the applicable securities laws of such states and other jurisdictions as you may reasonably designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Terms Agreement applicable to such Offered Securities; provided, however, that the Company shall not be payable obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Offered Securities have been qualified as above provided.
(h) With respect to each sale of Offered Securities, the Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning, in each case, not later than the first day of the Company's fiscal quarter next following the effective date (as defined in Rule 158) of the Registration Statement relating to the Offered Securities.
(i) If and to the extent specified in the applicable Terms Agreement, the Company will use its best efforts to effect the listing of the Offered Securities and, if applicable, any Debt Securities, Preferred Stock or Common Stock which may be issuable pursuant to the exercise of the applicable Warrants and the Capital Securities, other preferred stock or Debt Securities issuable upon conversion of Preferred Stock and/or Capital Securities issuable upon conversion of Subordinated Debt Securities, on the New York Stock Exchange or such other national securities exchange as may be designated in the applicable Terms Agreement by the Closing Date with respect to any the applicable Terms Agreement.
(j) For a period of five years after the Closing Date, the Company will furnish to you copies of all annual reports, quarterly 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, and such other documents, reports and information as shall be furnished by the Company to its stockholders generally.
(k) Between the date of the Pledged Collateral applicable Terms Agreement and the Closing Date or such other date as is set forth in such Terms Agreement, the Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, the securities set forth in such Terms Agreement, other than as set forth in such Terms Agreement.
(l) The Company, whether or not the transactions contemplated hereunder are consummated or the Agreement is terminated, will pay all expenses incident to the performance of its obligations hereunder, will pay the expenses of printing or otherwise producing all documents relating to the offering, and will pay, or reimburse the Underwriters, for any reasonable expenses (including fees and disbursements of counsel) incurred by them in connection with the transaction contemplated matters referred to in Section 4(g) hereof and the preparation of memoranda relating thereto, for any filing fee of the National Association of Securities Dealers, Inc. relating to the Securities, for any fees charged by this Agreementinvestment rating agencies for rating the Securities, for any fees and expenses of any Trustee and any agent of any Trustee in connection with any Indenture and the Securities, for any listing fees and for the cost of mailing any Preliminary Prospectus. Notwithstanding the foregoing, if there is a mistake in the written information furnished by the Representative or Representatives to the Company for use in the Prospectus and if such Prospectus is required to be reprinted pursuant to Sections 4(b) and 4(d), then the expense of reprinting such Prospectus shall be borne, severally, by the Underwriter or Underwriters who shall have furnished such incorrect information to such Representative or Representatives.
(m) The Company will apply the net proceeds from the sale of the Securities as set forth in the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Keycorp /New/), Underwriting Agreement (Keycorp /New/)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance Underwriter as follows:
(i) During the period beginning on the date hereof and ending on the later of the Second Closing Date and such date, as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered (assuming the absence of Rule 172 under the Securities Act), in connection with sales by the Underwriter (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462(b) Registration Statement), the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter or its counsel reasonably objects. Subject to this Section 4(i), immediately following execution of this Agreement:, the Company will prepare the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the Underwriter and the Company may deem appropriate, and if requested by the Underwriter, an Issuer Free Writing Prospectus containing the selling terms of the Securities and such other information as the Company and the Underwriter may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each Issuer Free Writing Prospectus.
(aii) The Company will advise the Underwriter, promptly after it shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority receive notice or obtain knowledge thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto, or preventing or suspending the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A or 430B, as applicable, under the Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(diii) (A) During the Prospectus Delivery Period, the Company will comply as far as it shall furnish to Pledgee is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event shall occur or condition shall exist as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements and schedules further identifying and describing therein, in the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change light of the location circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Pledgor’s chief executive office, (iiSale Disclosure Package) change of Pledgor’s name, identity to comply with the Securities Act or structure or (iii) reorganization or reincorporation of Pledgor to file under the laws Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of another jurisdiction, in each case from Sale Disclosure Package) or file such document (at the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents expense of the Company that could reasonably be expected Company) so as to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection correct such statement or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement omission or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementeffect such compliance.
Appears in 2 contracts
Sources: Purchase Agreement (Valuevision Media Inc), Purchase Agreement (Micromet, Inc.)
Covenants. The Pledgor hereby covenants that during the continuance of For so long as this AgreementNote remains outstanding or any amount remains unpaid on this Note:
(a) it OneBeacon shall warrant use commercially reasonable efforts to obtain the approval of the Commissioner in accordance with Section 322.2 of the Insurance Law for the payment by OneBeacon of interest on and defend its title principal of this Note on the scheduled payment dates, prepayment date or maturity dates thereof, and, in the event any such approval has not been obtained for any such payment or prepayment at or prior to the Pledged Collateralscheduled payment date, prepayment date or maturity date, as the case may be, to continue to use best efforts to obtain such approval promptly thereafter. Not less than 45 days prior to the scheduled payment date, prepayment date or maturity date (excluding any such maturity date which arises as a result of the obtaining of an order or the granting of approval for the rehabilitation, liquidation, conservation or dissolution of OneBeacon), OneBeacon will seek the approval of the Commissioner to make each payment or prepayment of interest on and principal of this Note. In addition, OneBeacon shall notify in writing the holder of this Note no later than five Business Days prior to the scheduled payment date for interest, date for the prepayment of principal or the maturity date for principal in the event that the Commissioner has not then approved the making of any such payment on such scheduled payment date, prepayment date or such maturity date, and all material rights and thereafter, if such payment or prepayment has been approved by the security interest (including Commissioner, shall promptly notify in writing the priority thereof) holder of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost Note of the Pledgor against the claims and demands of all persons whomsoever;such approval.
(b) except Until the full principal amount of this Note and any interest incurred thereon has been paid to the holder hereof, OneBeacon shall not, without the prior written consent of the holder of this Note:
(i) make any dividend or distribution to holders of its equity interests or purchase or retire any of its equity interests;
(ii) create, assume, incur or have outstanding any indebtedness (including purchase money indebtedness), or become liable, whether as otherwise permitted in this Agreement endorser, guarantor, surety or the Finance Documentsotherwise, it shall not sellfor any debt or obligation of any other person;
(iii) cease operations, assignliquidate, merge, transfer, chargeacquire or consolidate with any entity, pledge or encumber in any manner any part dissolve or transfer or sell assets outside of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liensordinary course of business;
(civ) it shall not take from the Company amend its charter or bylaws in a manner that would adversely affect its corporate existence, material rights (charter and statutory) or material franchises; or
(v) write, assume or acquire any undertaking new business (including through any reinsurance or security in respect of its liability hereunder or in respect of any under existing treaties) other liability of the Company than pursuant to the Pledgor fronting requirements set forth in Section 5.23 of that certain Stock Purchase Agreement between OneBeacon Insurance Group LLC, Trebuchet US Holdings, Inc. and the Pledgor shall not prove nor have the right of proofother parties thereto, in competition with the Pledgeedated October 17, for any monies whatsoever owing from the Company to the Pledgor2012, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee as amended from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementtime.
Appears in 2 contracts
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD), Stock Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer covenants and agrees with the several Underwriters that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations a Prospectus in a form approved by this Agreement the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (ii) not file any amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in each case at writing or which is not in compliance with the cost Rules and Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Pledgor against Prospectus and prior to the claims and demands termination of all persons whomsoever;the offering of the Shares by the Underwriters.
(b) except as otherwise permitted in this Agreement or The Issuer has not distributed and without the Finance Documentsprior consent of the Representatives, it shall will not selldistribute any prospectus or other offering material (including, assignwithout limitation, transfer, charge, pledge any offer relating to the Shares that would constitute a Free Writing Prospectus and content on the Issuer’s website that may be deemed to be a prospectus or encumber other offering material) in any manner any part connection with the offering and sale of the Pledged Collateral or suffer to exist any encumbrance on the Pledged CollateralShares, other than Permitted Liens;the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer and the Representatives, it will not make, any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and the Representatives is listed on Schedule IV(a) or (b) hereto. The Issuer has complied and will comply with the requirements of Rule 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
(c) The Issuer will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Issuer.
(d) After the date of this Agreement, the Issuer shall promptly advise the Representatives in writing (i) when the Registration Statement shall have become effective, (ii) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (iii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iv) of the time and date that any post-effective amendment to the Registration Statement becomes effective and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. The Issuer shall use its commercially reasonable efforts to prevent the issuance of any such stop order or notice of prevention or suspension of such use. If the Commission shall enter any such stop order or issue any such notice at any time, the Issuer will use its commercially reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest possible moment, or, subject to Section 5(a), will file an amendment to the Registration Statement or will file a new registration statement and use its commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable. Additionally, the Issuer agrees that it shall not take comply with the provisions of Rules 424(b) and 430A, as applicable, of the Rules and Regulations, including with respect to the timely filing of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Issuer under such Rule 424(b) of the Rules and Regulations were received in a timely manner by the Commission.
(e) The Issuer will cooperate with the Representatives in endeavoring to qualify the Shares for sale under or obtain exemptions from the Company application of the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided, that the Issuer shall not be required to (i) qualify as a foreign corporation in any undertaking jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. The Issuer will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Issuer shall use its commercially reasonable efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) The Issuer will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Issuer will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Issuer will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representatives may reasonably request.
(g) The Issuer will comply with the Securities Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder and the rules and regulations of the New York Stock Exchange, so as to permit the completion of the distribution of the Shares and the Directed Share Program as contemplated in this Agreement and the Prospectus. If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event or development shall occur or condition exist as a result of which the Prospectus or the Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Prospectus or the Disclosure Package, in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Representatives it is otherwise necessary or advisable to amend or supplement the Registration Statement, the Prospectus or the Disclosure Package, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Issuer agrees to (i) notify the Representatives of any such event, development or condition and (ii) promptly prepare (subject to Section 5(a) hereof), file with the Commission (and use its commercially reasonable efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the Underwriters and to any dealers identified by the Representatives, amendments or supplements to the Registration Statement, the Prospectus or the Disclosure Package, or any new registration statement, necessary in order to make the statements in the Prospectus or the Disclosure Package as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Prospectus or the Disclosure Package, as amended or supplemented, will comply with law.
(h) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in respect any event not later than 15 months after the effective date of its liability hereunder the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(i) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(j) The Issuer covenants and agrees that it will not, without the prior written consent of the Representatives (which consent may be withheld in their sole discretion), directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), grant any option, right or warrant to purchase, pledge, transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, lend or otherwise dispose of any shares of Common Stock, options, rights or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock, including, without limitation, entering into any swap or other arrangement that transfers, in whole or in part, the economic consequences of the ownership of Common Stock, or announce the offering of, or file any registration statement under the Securities Act in respect of any other liability shares of Common Stock, options or warrants to acquire Common Stock or securities exchangeable or exercisable for or convertible into Common Stock, or publicly announce an intention to do any of the Company foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date 180 days after the date of the final prospectus relating to the Pledgor and offering (the Pledgor shall not prove nor have “Initial Restricted Period”), other than: (i) the right Shares to be sold hereunder; (ii) grants of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company options pursuant to the PledgorIssuer Stock Plans; provided, in any insolvency that such securities will not vest or liquidationbecome exercisable, or analogous proceedings under any applicable lawas applicable, of during the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing Initial Restricted Period without the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 daysRepresentatives’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure consent; or (iii) reorganization any registration statement on Form S-8 or reincorporation any similar or successor form relating to an offering of Pledgor under securities solely to the laws Issuer’s or its Subsidiaries’ employees. Notwithstanding the foregoing, if (i) the Issuer issues an earnings release or material news, or a material event relating to the Issuer occurs, during the last 17 days of another jurisdictionthe Initial Restricted Period, or (ii) prior to the expiration of the Initial Restricted Period, the Issuer announces that it will release earnings results during the 16-day period beginning on the last day of the Initial Restricted Period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The Issuer shall not engage in any transaction that may be restricted by this Section 5(j) during the 34-day period beginning on the last day of the Initial Restricted Period unless the Issuer requests and receives prior written confirmation from the Representatives that the restrictions imposed by this Agreement have expired.
(k) The Issuer will use its commercially reasonable efforts to list, subject to notice of issuance, the Shares, and cause the shares to be admitted and authorized for trading, on the New York Stock Exchange.
(l) The Issuer has caused each of its officers and directors and various shareholders of the Issuer, which officers, directors and shareholders in the aggregate own at least % of the outstanding shares of Common Stock of the Issuer, to furnish to RBC, on or prior to the date of this Agreement, a letter or letters, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment form and substance satisfactory to the Organizational Documents Representatives, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Issuer or other organizational documents capital stock of the Company that could reasonably be expected to adversely affect the Pledged CollateralIssuer, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document securities convertible, exchangeable or their ability exercisable for Common Stock or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to exercise which such person has the sameright to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or cause an Event indirectly, except with the prior written consent of Default RBC (“Lockup Agreements”); provided, however, that the provisions of the Lockup Agreements do not apply to occur; andthe sale by Selling Shareholders of Firm Securities pursuant to this Agreement.
(gm) it If RBC, in its sole discretion, agrees to release or waive the restrictions set forth in a Lockup Agreement for an officer or director of the 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 Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service at least two business days before the effective date of the release or waiver.
(n) The Issuer shall indemnify apply the Pledgee from, net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and hold it harmless against, any the Disclosure Package and all liabilities shall report with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable the Commission with respect to any the sale of the Pledged Collateral or Shares and the application of the proceeds therefrom as may be required in connection with the transaction contemplated by this Agreement.acc
Appears in 2 contracts
Sources: Equity Underwriting Agreement (Matador Resources Co), Equity Underwriting Agreement (Matador Resources Co)
Covenants. The Pledgor hereby Seller or COAF, as the case may be, covenants that during the continuance of this Agreementand agrees with each Underwriter that:
(a) it shall warrant The Seller will prepare a Prospectus Supplement setting forth the amount of Class A Notes covered thereby and defend its title the terms thereof not otherwise specified in the Prospectus, the price at which the Class A Notes are to be purchased by the Underwriters from the Seller, the initial public offering price at which the Class A Notes are to be sold, the selling concessions and allowances, if any, and such other information as the Seller deems appropriate in connection with the offering of the Class A Notes, but the Seller will not file any amendments to the Pledged CollateralRegistration Statement as in effect with respect to the Class A Notes, or any amendments or supplements to the Prospectus, without the Representative's prior consent (which consent shall not be unreasonably withheld or delayed); the Seller will immediately advise the Representative and its counsel: (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement has become or will become effective and (ii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Class A Notes or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission or any authority administering any state securities or Blue Sky law, as soon as practicable after the Seller is advised thereof, and will use its reasonable efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued.
(b) Within the time period during which a prospectus relating to the Class A Notes is required to be delivered under the Act, the Seller will comply with all material rights requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Class A Notes as contemplated by the provisions hereof and the security interest (including Prospectus. If, at any time when a Prospectus relating to the priority thereof) Class A Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Pledgee conferred circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Seller will promptly prepare and (subject to review and no reasonable objection by this Agreement the Representative as described in and Section 5(a)) file with the Commission, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; provided, however, that the Representative's consent to any amendment shall not constitute a waiver of any of the conditions of Section 6.
(c) The Seller will make generally available to the Pledged Collateralholders of the Class A Notes (the "Class A Noteholders") (the sole Class A Noteholders being the applicable clearing agency in the case of Book-Entry Certificates), in each case at as soon as practicable, a statement which will satisfy the cost provisions of Section I (a) of the Pledgor against the claims Act and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part Rule 158 of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in Commission with respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Class A Notes.
(d) it shall The Seller will furnish to Pledgee from time the Representative copies of the Registration Statement (at least one copy to time statements be delivered to the Representative will be conformed and schedules further identifying will include all documents and describing exhibits thereto or incorporated by reference therein), the Pledged Collateral Prospectus, and all amendments and supplements to such documents, in each case as Pledgee soon as available and in such quantities as the Representative reasonably requests, all in reasonable detail;.
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change The Seller will assist the Underwriters in arranging for the qualification of the location Class A Notes for sale and the determination of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor their eligibility for investment under the laws of another jurisdictionsuch jurisdictions as the Representative may designate and will continue to assist the Underwriters in maintaining such qualifications in effect so long as required for the distribution; provided, however, that neither the Seller nor the Trust shall be required to qualify to do business in each case from the information specified any jurisdiction where it is now not qualified or to take any action which would subject it to general or unlimited service of process in Part B any jurisdiction in which it is now not subject to service of Schedule 1;process.
(f) it shall not consent If filing of the Prospectus is required under Rule 424(b) of the Commission, the Seller will file the Prospectus, properly completed, and any supplement thereto, pursuant to any termination of or amendment Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Organizational Documents or other organizational documents Representative of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andsuch timely filing.
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to So long as any of the Pledged Collateral Class A Notes are outstanding, the Seller or COAF, as applicable, will furnish to the Underwriters, by first-class mail, as soon as practicable, (i) all documents required to be distributed to the Class A Noteholders and (ii) from time to time, such other information concerning the Seller, COAF or the Trust, as the Underwriters may reasonably request.
(h) The Seller and COAF will apply the net proceeds from the sale of the Class A Notes as set forth in connection the Prospectus.
(i) On or before the final transfer of Subsequent Receivables to the Trust and the expiration of the Pre-Funding Period, if COAF is required by the Note Insurer to obtain a letter from Ernst & Young LLP, as independent auditors for COAF, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by COAF, as a result of which they have determined, having examined in accordance with such agreed upon procedures, that the Subsequent Receivables conform to the related requirements described in the Prospectus, COAF shall deliver a copy of such letter, addressed to the Representative. The foregoing letter shall be at the expense of COAF.
(j) At the time of the execution and delivery of each Subsequent Transfer, the Subsequent Receivables will have been duly and validly assigned to the Indenture Trustee in accordance with the transaction contemplated Indenture; and when such assignment is effected, a duly and validly perfected transfer of all such Subsequent Receivables subject to no prior lien, mortgage, security interest, pledge charge or other encumbrance created by this AgreementCOAF or the Seller will have occurred. As of the related Funding Date, each of the Subsequent Receivables will meet the eligibility criteria described in the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Capital One Auto Finance Trust 2002-A), Underwriting Agreement (Capital One Auto Receivables Trust 2001-B)
Covenants. The Pledgor hereby a. These covenants that during shall run with the continuance land, and all future conveyances of this Agreement:any lots of the Subdivision shall be subject to the conditions, covenants, obligations and restrictions set forth herein. Acceptance of a deed by any purchaser is considered an agreement to observe and abide by such covenants, conditions and restrictions for the protection of all owners within the subdivision.
b. Invalidation of any one of these covenants by judgment or court order shall in no way effect the remaining provisions, which shall remain in full force and effect.
c. These covenants and restrictions may be removed, modified, annulled, waived, changed and/or amended at any time and in any manner by a written Declaration setting forth such amendment, (a) it shall warrant and defend its title to by the Pledged Collateral, and all material rights and Developer as long as the security interest (including Developer owns any lot in the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
subdivision; (b) except as otherwise permitted after the Developer has sold all lots and doesn’t reside on one, then by the owners of at least 75% of the lots. The written Declaration shall be recorded in this Agreement the office of the Register of Deeds for Outagamie County, Wisconsin.
d. The Developer and/or individual lot owners benefited by the Declaration may enforce these conditions, covenants and restrictions using any available legal or equitable remedies, including, by way of example only, affirmative or restrictive injunction. In the event of litigation to enforce these conditions, covenants and restrictions, the non-performing party or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to party violating any of the Pledged Collateral or conditions, covenants and restrictions shall reimburse the Developer and/or individual Owners for all out-of-pocket expenses (including actual attorneys' fees and court costs) incurred in connection successfully enforcing these conditions, covenants, and restrictions.
e. Variations in any of these covenants may be permitted by the Developer where he is reasonably satisfied that such variations will be pleasing and generally in keeping with the transaction contemplated by this Agreementcharacter of surrounding properties and will not be a detriment to the subdivision as a whole. After the Developer no longer owns any lot in the subdivision, requests for variations may be submitted to such review committee(s) as may be convened from among the property owners within the subdivision for consideration and approval or rejection.
Appears in 2 contracts
Sources: Restrictive Covenants, Restrictive Covenants
Covenants. The Pledgor Optionor hereby covenants that during and agrees that, from and --------- after the continuance of this date hereof, except as otherwise contemplated in and permitted by the Redemption Agreement:
, Optionor will not, without Optionee's prior written consent, (a) it shall warrant and defend its title to the Pledged Collateralamend, and all material rights and the security interest (including the priority thereof) modify, cancel or terminate, any of the Pledgee conferred by this Agreement Investment Notes, Remainder Notes or Investment Loan Documents in and to any manner which will adversely affect or impact the Pledged Collateral, in each case at the cost interest of the Pledgor against "payee" under the claims Remainder Notes and demands of all persons whomsoever;
Investment Loan Documents if and when such Remainder Notes are transferred to Optionee, (b) waive, relinquish or allow to lapse any right of Optionor as "lender/payee" under the Investment Notes, Remainder Notes or Investment Loan Documents which will in any manner adversely affect or impact the interest of the "payee" under the Remainder Notes and other Investment Loan Documents if and when such Remainder Notes are transferred to Optionee, or (c) agree or consent to any agreements or understandings that will impact the Remainder Notes if and when such Remainder Notes are transferred to Optionee. In furtherance of the foregoing, except as otherwise permitted in this for the transfer of Investment Notes to PIC pursuant to the Redemption Agreement or and any pledge of the Finance DocumentsInvestment Notes to secure the Equity Redemption Loan, it Optionor shall not sell, assign, transfer, charge, pledge assign or encumber in otherwise transfer any manner any part of the Pledged Collateral Investment Notes or suffer Remainder Notes prior to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability expiration of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proofOption Election Period; provided that, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of Optionor shall be permitted to transfer any -------- ---- Remainder Notes after the location of Pledgor’s chief executive office"Redemption Distribution" under the Redemption Agreement subject to this Agreement, and (ii) change all restrictions on the transferability of Pledgor’s name, identity the Investment Notes and Remainder Notes shall cease upon the expiration of the Option Election Period and Optionor shall thereafter be permitted to freely transfer the Investment Notes and/or Remainder Notes without restriction. Upon written request by either party at or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment prior to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged CollateralClosing, the Pledgor’s rights in other party shall give to the Pledged Collateral, the validity, perfection or priority requesting party written notice of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to newly discovered information that causes any of the Pledged Collateral representations or warranties of such responding party made in connection with this Agreement to be materially untrue or incorrect, or of the transaction contemplated by this Agreementoccurrence of any event or circumstance that would materially modify or affect the substance of such representations and warranties.
Appears in 2 contracts
Sources: Option and Put Agreement (Boston Properties Inc), Option and Put Agreement (Boston Properties Inc)
Covenants. The Pledgor hereby covenants that during the continuance of this AgreementEach Shareholder hereby:
(a) it shall warrant agrees upon receipt of written inquiry from the Company or Parent to promptly notify the Company and defend its title Parent of the number of any New Shares acquired by such Shareholder after the date hereof and prior to the Pledged Collateral, and all material rights and Expiration Date. Any New Shares shall automatically be subject to the security interest (including the priority thereof) applicable terms of the Pledgee conferred by this Agreement in and to as though owned by such Shareholder on the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeverdate hereof;
(b) except as otherwise permitted agrees to (i) permit the Company and Parent to publish and disclose, including in filings with the SEC and in the press release announcing the transactions contemplated by the Merger Agreement (the “Announcement Release”), this Agreement and the Shareholders’ identity and ownership of the Shares and the nature of the Shareholders’ commitments, arrangements and understandings under this Agreement, in each case, to the extent the Company or Parent reasonably determines that such information is required to be disclosed by applicable Law (or in the case of the Announcement Release, to the extent the information contained therein is consistent with other disclosures being made by the Company, Parent or the Finance DocumentsShareholders); provided that the Company or Parent, it as the case may be, shall not sell, assign, transfer, charge, pledge give each Shareholder and its legal counsel a reasonable opportunity to review and comment on such publications or encumber disclosures prior to being made public and (ii) give to Parent and the Company as promptly as practicable any information related to the foregoing that Parent or the Company may reasonably require for the preparation of any disclosure documents to be filed with the SEC. Each Shareholder agrees to promptly notify each of Parent and the Company of any required corrections with respect to any written information supplied by such Shareholder specifically for use in any manner such disclosure document, if and to the extent such Shareholder becomes aware that any part of the Pledged Collateral such information shall have become false or suffer to exist misleading in any encumbrance on the Pledged Collateral, other than Permitted Liens;material respect; and
(c) shall and does authorize the Company or its counsel to (i) notify Parent’s transfer agent that there is a stop transfer order with respect to all of the Parent Shares (and that this Agreement places limits on the voting and transfer of the Parent Shares); provided that if the Company or its counsel gives such notification, it shall not take from on the Company any undertaking or security in earlier of the (x) Expiration Date and (y) the date on which the Parent Shareholder Approval is obtained further notify Parent’s transfer agent that the stop transfer order (and all other restrictions) have terminated as of such date; and (ii) notify the Company’s transfer agent that there is a stop transfer order with respect of its liability hereunder or in respect of any other liability to all of the Company to Shares (and that this Agreement places limits on the Pledgor voting and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents transfer of the Company Shares); provided that could reasonably be expected to adversely affect if the Pledged CollateralCompany or its counsel gives such notification, it shall on the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority earlier of the security interests of (x) Expiration Date and (y) the Pledgee in date on which the Pledged Collateral, Company Shareholder Approval is obtained further notify the rights and remedies of Company’s transfer agent that the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
stop transfer order (g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any restrictions) have terminated as of the Pledged Collateral or in connection with the transaction contemplated by this Agreementsuch date.
Appears in 2 contracts
Sources: Voting and Support Agreement (Baltic Trading LTD), Voting and Support Agreement (Genco Shipping & Trading LTD)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer - covenants and agrees with the several Underwriters that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations a Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations; (ii) not file any amendment to the Registration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which RBC Capital Markets Corporation shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations; and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(b) The Issuer has not distributed and without the prior consent of RBC Capital Markets Corporation, it will not distribute any prospectus or other offering material (including, without limitation, any offer relating to the Shares that would constitute a Free Writing Prospectus and content on the Issuer’s website that may be deemed to be a prospectus or other offering material) in connection with the offering and sale of the Shares, other than the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer and RBC Capital Markets Corporation, it will not make, any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and RBC Capital Markets Corporation, is listed on Schedule II(a) or Schedule II(b) hereto. The Issuer has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to RBC Capital Markets Corporation and, if requested by RBC Capital Markets Corporation, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
(c) The Issuer will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Issuer.
(d) The Issuer will advise the Representative promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective; (ii) of receipt of any comments from the Commission; (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Issuer will use its commercially reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(e) The Issuer will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Issuer shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Shares.
(f) The Issuer will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Issuer will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Issuer will deliver to the Representative at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(g) The Issuer will comply with the Securities Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Issuer promptly will prepare and file with the Commission an appropriate amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(h) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(i) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(j) Without the prior written consent of the Representative on behalf of the Underwriters, the Issuer will not, during the period ending 180 days after the date of the Prospectus relating to the offering of the Shares, which shall be reduced to120 days in connection with an acquisition of assets or merger (such period, as it may be extended below, the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock of the Issuer or any securities convertible into or exercisable or exchangeable for shares of common stock of the Issuer or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the shares of common stock of the Issuer, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of shares of common stock of the Issuer or such other securities, in cash or otherwise or (3) file any registration statement with the Commission relating to the offering of any shares of common stock of the Issuer or any securities convertible into or exercisable or exchangeable for shares of common stock of the Issuer; provided, however, that the Issuer may, without the prior written consent of the Representative on behalf of the Underwriters, (A) issue shares of common stock of the Issuer or securities convertible into or exercisable or exchangeable for shares of common stock of the Issuer pursuant to the exercise of the warrants or options, in each case at outstanding on the cost date hereof and described in the Prospectus and the Disclosure Package, and provided that such issued shares shall be subject to the Lock-Up Period as described above; (B) grant restricted stock of the Pledgor against the claims and demands Issuer, stock options to acquire shares of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part common stock of the Pledged Collateral Issuer or suffer restricted common stock of the Issuer to exist any encumbrance employees, officers, directors, advisors and consultants of the Issuer, the Subsidiaries or ▇▇▇▇ pursuant to the terms of a plan in effect on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from date hereof and described in the Company any undertaking or security in respect Prospectus and the Disclosure Package and issue shares of its liability hereunder or in respect common stock of the Issuer pursuant to the exercise of any other liability such stock options, and provided that such issued shares shall be subject to the Lock-Up Period as described above; (C) file with the Commission a registration statement under the Securities Act of Form S-8 with respect to securities of the Company Issuer issued pursuant to an employee stock purchase plan as described in the Prospectus and the Disclosure Package; and (D) file with the Commission a shelf registration statement under the Securities Act on Form S-1 with respect to the Pledgor and shares of common stock of the Pledgor shall not prove nor have Issuer which may be issued upon the right conversion of proofthe preferred stock of the Issuer. Notwithstanding the foregoing, in competition with if (1) during the Pledgeelast 17 days of the 180-day restricted period, for any monies whatsoever owing from the Company Issuer issues an earnings release or material news or a material event relating to the Pledgor, in any insolvency Issuer occurs; or liquidation, or analogous proceedings under any applicable law, (2) prior to the expiration of the Pledgor;
(d) 180-day restricted period, the Issuer announces that it shall furnish to Pledgee from time to time statements and schedules further identifying and describing will release earnings results during the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change 16-day period following the last day of the location of Pledgor’s chief executive office180-day restricted period, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, then in each case from the information specified restrictions imposed by this Lock-Up Letter Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Issuer, as the case may be, unless the Representative waives, in Part B of Schedule 1;writing, such extension.
(fk) it shall not consent The Issuer will use its commercially reasonable efforts to any termination list, subject to notice of or amendment issuance, the Shares on the NYSE AMEX.
(l) The Issuer has caused each of the officers, directors and specific shareholders of the Issuer listed on Schedule III hereto to furnish to the Organizational Documents Underwriters, on or other organizational documents prior to the date of this agreement, a letter or letters, in the form attached hereto as Exhibit B and with only such changes as are satisfactory to the Representative (the “Lockup Agreements”).
(m) The Issuer shall apply the net proceeds of its sale of the Company that could reasonably be expected to adversely affect Shares as described under the Pledged Collateral, the Pledgor’s rights heading “Use of Proceeds” in the Pledged Collateral, Prospectus and the validity, perfection or priority of Disclosure Package and shall report with the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act.
(n) The Issuer shall not invest, or otherwise use the proceeds received by the Issuer from its sale of the Shares in such a manner as would require the Issuer or any of the Pledged Collateral or in connection with Subsidiaries to register as an investment company under the transaction contemplated by this Agreement▇▇▇▇ ▇▇▇.
(o) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
Appears in 2 contracts
Sources: Equity Underwriting Agreement (Resaca Exploitation, Inc.), Equity Underwriting Agreement (Resaca Exploitation, Inc.)
Covenants. The Pledgor hereby Executive shall not divulge any customer lists or other confidential information of Avatech, except to the extent Avatech authorizes in writing or as may be required by law. Executive promises, agrees, and covenants that during the continuance of this Agreementthat:
(a) it If Executive's employment is terminated or ceases for any reason, then Executive, for a period of eighteen (18) months following the cessation of Executive's employment, shall warrant and defend its title to not, whether as an Executive, independent contractor, stockholder, partner, advisor, or sole practitioner, within a radius of five hundred (500) air miles from the Pledged Collateral, and all material rights and the security interest (including the priority thereof) location of the Pledgee conferred by this Agreement any office of Avatech, engage in and to any business that competes with the Pledged Collateral, in each case at business of Avatech. Executive expressly acknowledges that five hundred (500) air miles is a reasonable radius restriction considering the cost of the Pledgor against the claims and demands of all persons whomsoeverbroad area that Avatech serves;
(b) except as otherwise permitted in Executive shall not, for a period of eighteen (18) months following the cessation of Executive's employment under this Agreement for any reason (and during the Term of this Agreement), directly or indirectly, for Executive's own account or for the Finance Documentsaccount of others (including without limitation any other person in which Executive has an interest, it shall not sellwhether as a stockholder, assigndirector, transferofficer, chargeinvestor, pledge lender, partner, Executive, sole proprietor, independent contractor, or encumber in consultant), solicit any manner any part customers of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;Avatech; and
(c) it Executive shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgeenot, for any monies whatsoever owing from a period of eighteen (18) months following the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, cessation of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee Executive's employment under this Agreement for any reason (and during the Term of this Agreement), directly or indirectly, for Executive's own account or for the account of others (including without limitation any other Finance Document or their ability to exercise the sameperson in which Executive has an interest, whether as a stockholder, director, officer, investor, lender, partner, Executive, sole proprietor, independent contractor, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee fromconsultant), and hold it harmless againsturge, any and all liabilities with respect toinduce, entice, or resulting from in any delay in paying, manner whatsoever solicit any and all stamp, excise, sales or other taxes which Executives to leave Avatech's employ. Avatech may be payable or determined to be payable with respect to any within thirty (30) days of the Pledged Collateral or in connection with cessation of Executive's employment under this Agreement send Executive a list of those persons that were "customers" under Section 2.2(b); provided, however, that the transaction contemplated failure by Avatech to send such list shall not affect the enforceability of this AgreementSection 2.
Appears in 2 contracts
Sources: Severance Agreement (Planetcad Inc), Severance Agreement (Planetcad Inc)
Covenants. The Pledgor hereby Seller or COAF, as the case may be, covenants that during the continuance of this Agreementand agrees with each Underwriter that:
(a) it shall warrant The Seller will prepare a prospectus supplement (the “Prospectus Supplement”) setting forth the amount of Notes covered thereby and defend its title the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters from the Seller, the initial public offering price at which the Notes are to be sold, the selling concessions and allowances, if any, and such other information as the Seller deems appropriate in connection with the offering of the Notes, but the Seller will not file any amendments to the Pledged CollateralRegistration Statement as in effect with respect to the Notes, or any amendments or supplements to the Prospectus, without the Representatives’ prior consent (which consent shall not be unreasonably withheld or delayed); the Seller will immediately advise the Representatives and their counsel: (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement has become or will become effective and (ii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Notes or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission or any authority administering any state securities or Blue Sky law, as soon as practicable after the Seller is advised thereof, and will use its reasonable efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued.
(b) Within the time period during which a prospectus relating to the Notes is required to be delivered under the Act, the Seller will comply with all material rights requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Notes, as contemplated by the provisions hereof and the security interest (including Prospectus. If, at any time when a Prospectus relating to the priority thereof) Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Pledgee conferred circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Seller will promptly prepare and (subject to review and consent by this Agreement the Representatives as described in and Section 5(a)) file with the Commission, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; provided, however, that the Representatives’ consent to any amendment shall not constitute a waiver of any of the conditions of Section 6.
(c) The Seller will make (or will cause the Issuer to make) generally available to the Pledged Collateralholders of the Notes (the “Noteholders”) (the sole Noteholders being the applicable clearing agency in the case of Book-Entry Notes), in each case at as soon as practicable, a statement which will satisfy the cost provisions of Section 11 (a) of the Pledgor against the claims Act and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part Rule 158 of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in Commission with respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Notes.
(d) it shall The Seller will furnish to Pledgee from time the Representatives copies of the Registration Statement (at least one copy to time statements be delivered to the Representatives will be conformed and schedules further identifying will include all documents and describing exhibits thereto or incorporated by reference therein), the Pledged Collateral Prospectus, and all amendments and supplements to such documents, in each case as Pledgee soon as available and in such quantities as the Representatives may reasonably requests, all in reasonable detail;request.
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change The Seller will assist the Underwriters in arranging for the qualification of the location Notes for sale and the determination of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor their eligibility for investment under the laws of another jurisdictionsuch jurisdictions as the Representatives may designate and will continue to assist the Underwriters in maintaining such qualifications in effect so long as required for the distribution; provided, however, that neither the Seller nor the Issuer shall be required to qualify to do business in each case from the information specified any jurisdiction where it is now not qualified or to take any action which would subject it to general or unlimited service of process in Part B any jurisdiction in which it is now not subject to service of Schedule 1;process or to file a general consent to service of process in any jurisdiction in which it is now not subject to service of process.
(f) it shall not consent If filing of the Prospectus or any portion thereof is required under Rule 424(b) of the Commission, the Seller will file the Prospectus, properly completed, and any supplement thereto, pursuant to any termination of or amendment Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Organizational Documents or other organizational documents Representatives of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andsuch timely filing.
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to So long as any of the Pledged Collateral Notes are outstanding, the Seller or COAF, as applicable, will furnish to the Underwriters, by first-class mail, as soon as practicable: (i) all documents required to be distributed to the Noteholders; and (ii) from time to time, such other information concerning the Seller, COAF or the Issuer as the Underwriters may reasonably request.
(h) The Seller and COAF will apply the net proceeds from the sale of the Notes as set forth in connection the Prospectus.
(i) At the time of the execution and delivery of each subsequent transfer, the Subsequent Receivables will have been duly and validly assigned to the Indenture Trustee in accordance with the transaction contemplated Indenture; and when such assignment is effected, a duly and validly perfected transfer of all such Subsequent Receivables subject to no prior lien, mortgage, security interest, pledge charge or other encumbrance created by this AgreementCOAF or the Seller will have occurred. As of the related Funding Date, each of the Subsequent Receivables will meet the eligibility criteria described in the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2004-1), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2004-2)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer covenants and agrees with the several Underwriters that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations a Prospectus in a form approved by this Agreement the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations; (ii) not file any amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in each case at writing or which is not in compliance with the cost Rules and Regulations; and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Pledgor against Prospectus and prior to the claims and demands termination of all persons whomsoever;the offering of the Shares by the Underwriters.
(b) except as otherwise permitted in this Agreement or The Issuer has not distributed and without the Finance Documentsprior consent of the Representative, it shall will not selldistribute any prospectus or other offering material (including, assignwithout limitation, transfer, charge, pledge any offer relating to the Shares that would constitute a Free Writing Prospectus and content on the Issuer’s website that may be deemed to be a prospectus or encumber other offering material) in any manner any part connection with the offering and sale of the Pledged Collateral or suffer to exist any encumbrance on the Pledged CollateralShares, other than Permitted Liens;the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer and the Representative, it will not make, any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing prospectus the use of which has been consented to by the Issuer and the Representative is listed on Schedule [II(a)] [III(a)] or Schedule [II(b)] [III(b)] hereto. The Issuer has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to the Representative and, if requested by the Representative, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this covenant shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Issuer by an Underwriter through the Representative or by the Selling Stockholder expressly for use therein.
(c) it shall The Issuer will not take from take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the Company any undertaking stabilization or security in respect manipulation of its liability hereunder or in respect the price of any other liability securities of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Issuer.
(d) it The Issuer will advise the Representative promptly (i) when the Registration Statement or any post-effective amendment thereto shall furnish have become effective; (ii) of receipt of any comments from the Commission; (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to Pledgee from time the Prospectus or for any additional information; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Issuer will use its commercially reasonable efforts to time statements prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and schedules further identifying and describing to obtain as soon as possible the Pledged Collateral as Pledgee reasonably requestslifting thereof, all in reasonable detail;if issued.
(e) The Issuer will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Issuer shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it shall give at least 30 days’ prior written notice is not now so qualified or required to Pledgee of any (i) change file such a consent. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Shares.
(f) it shall not consent The Issuer will deliver to, or upon the order of, the Representative, from time to time, as many copies of any termination Preliminary Prospectus as the Representative may reasonably request. The Issuer will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or amendment as thereafter amended or supplemented, as the Representative may reasonably request. The Issuer will deliver to the Organizational Documents Representative at or other organizational documents before the Closing Date, four signed copies of the Company Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that could may reasonably be expected to adversely affect requested) and of all amendments thereto, as the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andRepresentative may reasonably request.
(g) it shall indemnify The Issuer will comply with the Pledgee fromSecurities Act and the Rules and Regulations, and hold it harmless againstthe Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Issuer promptly will prepare and all liabilities file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(h) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(i) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(j) The Issuer covenants and agrees that no offering, sale, short sale or other disposition of any shares of Common Stock of the Issuer or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Issuer otherwise than hereunder or with the prior written consent of the Representative; provided, that this provision will not restrict the Issuer from (1) issuing shares of Common Stock pursuant to the exercise of outstanding options or warrants, (2) granting restricted stock awards with respect to, or resulting from options to purchase its Common Stock pursuant to employee benefit plans as described in the Prospectus and the Disclosure Package or (3) issuing Common Stock in connection with a business combination or acquisition in which shares of Common Stock are issued as all or part of the consideration to be received by the selling or acquired party or its stockholders. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period, the Issuer issues an earnings release or material news or a material event relating to the Issuer occurs; or (2) prior to the expiration of the 90-day restricted period, the Issuer announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(k) The Issuer will use its best efforts to list, subject to notice of issuance, the Shares on The Nasdaq Capital Market.
(l) The Issuer has caused each officer and director of the Issuer and each stockholder of the Issuer listed in Schedule V hereto to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any delay in paying, any and all stamp, excise, sales shares of Common Stock of the Issuer or other taxes capital stock of the Issuer, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which may be payable such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or determined indirectly, except with the prior written consent of the Representative (“Lockup Agreements”).
(m) The Issuer shall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package and shall report to be payable the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act.
(n) The Issuer shall not invest, or otherwise use the proceeds received by the Issuer from its sale of the Shares in such a manner as would require the Issuer or any of the Pledged Collateral or in connection with Subsidiaries to register as an investment company under the transaction contemplated by this Agreement▇▇▇▇ ▇▇▇.
(o) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Ram Energy Resources Inc), Underwriting Agreement (Ram Energy Resources Inc)
Covenants. The Pledgor (1) Party B hereby covenants to Party A that during he will bear all costs and expenses incurred in connection with equity transfer and complete all such procedures as may be necessary for Party A or its designated person to become a shareholder of the continuance Company, including, without limitation, assisting Party A in obtaining requisite approvals of this Agreementcompetent government authority with respect to equity transfer and submitting to competent AIC the relevant equity delivery agreement in an effort to amend the Company’s articles of association or shareholder register and make other adjustments.
(2) Party B covenants that he shall, within ten (10) business days after receipt of the equity transfer price paid by Party A or its designated person upon exercise of the Option hereunder, fully refund to Party A or its designated person such equity transfer price; meanwhile, Party B acknowledges that he has obtained corresponding compensation from Party A.
(3) Party B hereby represents and warrants to Party A that, as of the execution date hereof and each transfer date:
(a) it shall warrant Party B has the power and defend its title ability to execute and deliver this Agreement and any equity transfer agreement to which he is a party and which is executed with respect to each transfer of the Pledged Collateralacquired equity interests pursuant to this Agreement (each “Transfer Agreement”), and all material rights to perform his obligations hereunder and the security interest (including the priority thereof) of the Pledgee conferred by this thereunder. This Agreement and each Transfer Agreement to which he is a party, upon being executed, will constitute his legal, valid and binding obligations, enforceable against him in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeveraccordance with their terms;
(b) except as otherwise permitted in Neither his execution and delivery of this Agreement or any Transfer Agreement nor his performance of obligations hereunder or thereunder will: (i) constitute a violation of any applicable PRC laws; (ii) contravene the Finance Documentsarticles of association or other organizational documents of Party B; (iii) constitute a breach of any contract or instrument to which he is a party or by which he is bound, it shall not sell, assign, transfer, charge, pledge or encumber constitute a default thereunder; (iv) constitute a breach of any condition with respect to the grant and (or) survival of any permit or approval issued to him; or (v) result in suspension or revocation or attaching any manner condition to any part of the Pledged Collateral permit or suffer approval issued to exist any encumbrance on the Pledged Collateral, other than Permitted Lienshim;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company Party B has good and marketable title to the Pledgor and equity interests held by him in the Pledgor shall Company, on which Party B has not prove nor have created any encumbrance, except created under the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the PledgorShare Pledge Agreement;
(d) it shall furnish There are no outstanding debts, except for (i) debts incurred in the ordinary course of business of Party B; and (ii) debts that have been disclosed to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all consented in reasonable detailwriting by Party A;
(e) it shall give at least 30 days’ prior written notice The Company will comply with all laws and regulations applicable to Pledgee the acquisition of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;assets; and
(f) it shall not consent to any termination of There is no ongoing, pending or amendment to the Organizational Documents threatened litigation, arbitration or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable administrative proceeding with respect to any of the Pledged Collateral Company or in connection with the transaction contemplated by this Agreementits equity interests or assets.
Appears in 2 contracts
Sources: Option Purchase Agreement (AiHuiShou International Co. Ltd.), Option Purchase Agreement (AiHuiShou International Co. Ltd.)
Covenants. The Pledgor hereby covenants that during the continuance of this AgreementEach Stockholder hereby:
(a) it shall warrant irrevocably waives, and defend its title agrees not to exercise, any rights of appraisal or rights of dissent from the Merger that such Stockholder may have with respect to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeverShares;
(b) except as otherwise permitted in agrees upon receipt of written inquiry from Parent to promptly notify Parent of the number of any New Shares acquired by such Stockholder after the date hereof and prior to the Expiration Date. Any New Shares shall automatically be subject to the applicable terms of this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance as though owned by Stockholder on the Pledged Collateral, other than Permitted Liensdate hereof;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of agrees to permit the Company to publish and disclose, including in filings with the Pledgor Securities and Exchange Commission and in the press release announcing the transactions contemplated by the Merger Agreement (the “Announcement Release”), this Agreement and the Pledgor shall not prove nor have Stockholders’ identity and ownership of the right Shares and the nature of proofthe Stockholders’ commitments, arrangements and understandings under this Agreement, in competition with each case, to the Pledgee, for any monies whatsoever owing from extent the Company reasonably determines that such information is required to be disclosed by applicable Law (or in the case of the Announcement Release, to the Pledgor, in any insolvency extent the information contained therein is consistent with other disclosures being made by the Company or liquidation, the Stockholders); provided that the Company shall give each Stockholder and its legal counsel a reasonable opportunity to review and comment on such publications or analogous proceedings under any applicable law, of the Pledgor;disclosures prior to being made public; and
(d) it shall furnish and does authorize Parent or its counsel to Pledgee from time to time statements and schedules further identifying and describing notify the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of PledgorCompany’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company transfer agent that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable there is a stop transfer order with respect to any all of the Pledged Collateral Shares (and that this Agreement places limits on the voting and transfer of the Shares); provided that if Parent or in connection with its counsel gives such notification, it shall on the transaction contemplated by this Agreementearlier of the (x) Expiration Date and (y) the date on which the Company Stockholder Approval is obtained further notify the Company’s transfer agent that the stop transfer order (and all other restrictions) have terminated as of such date.
Appears in 2 contracts
Sources: Voting and Support Agreement (Dollar Tree Inc), Voting and Support Agreement (Trian Fund Management, L.P.)
Covenants. The Pledgor hereby Seller or Santander Consumer, as the case may be, covenants that during the continuance of this Agreementand agrees with each Underwriter that:
(a) it shall warrant The Seller will prepare the Prospectus Supplement setting forth the amount of Notes covered thereby and defend its title the terms thereof not otherwise specified in the Basic Prospectus, the price at which the Notes are to be purchased by the Underwriters from the Seller, the initial public offering price at which the Notes are to be sold, the selling concessions and allowances, if any, and such other information as the Seller deems appropriate in connection with the offering of the Notes, but the Seller will not file any amendments to the Pledged CollateralRegistration Statement as in effect with respect to the Notes, or any amendments or supplements to the Preliminary Prospectus, or the Prospectus, without the Representative’s prior consent (which consent shall not be unreasonably withheld or delayed); the Seller will immediately advise the Representative and its counsel: (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement has become or will become effective, (ii) when any supplement or amendment to the Preliminary Prospectus or Prospectus has been filed and (iii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Notes, or any prevention or suspension of the use of the Preliminary Prospectus or the Prospectus or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission or any authority administering any state securities or Blue Sky law, as soon as practicable after the Seller is advised thereof, and will use its reasonable efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued.
(b) Within the time period during which a prospectus relating to the Notes is required to be delivered under the Act, the Seller will comply with all material rights requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Notes, as contemplated by the provisions hereof and the security interest Prospectus. If, at any time when a Preliminary Prospectus or Prospectus relating to the Notes is required to be delivered under the Act (including or required to be delivered but for Rule 172 under the priority thereofAct), any event occurs as a result of which the Preliminary Prospectus or Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Seller will promptly prepare and (subject to review and consent by the Representative as described in Section 5(a) of this Agreement) file with the Pledgee conferred by Commission, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; provided, however, that the Representative’s consent to any amendment shall not constitute a waiver of any of the conditions of Section 6 of this Agreement in and Agreement.
(c) The Seller will make (or will cause the Issuer to make) generally available to the Pledged CollateralNoteholders (the sole Noteholders being the applicable clearing agency in the case of Book-Entry Notes (as defined in Appendix A to the Sale and Servicing Agreement)), in each case at as soon as practicable, a statement which will satisfy the cost provisions of Section 11 (a) of the Pledgor against the claims Act and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part Rule 158 of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in Commission with respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Notes.
(d) it shall The Seller will furnish to Pledgee from time the Representative copies of the Registration Statement (at least one copy to time statements be delivered to the Representative will be conformed and schedules further identifying will include all documents and describing exhibits thereto or incorporated by reference therein), the Pledged Collateral Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as Pledgee soon as available and in such quantities as the Representative may reasonably requests, all in reasonable detail;request.
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change The Seller will assist the Underwriters in arranging for the qualification of the location Notes for sale and the determination of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor their eligibility for investment under the laws of another jurisdictionsuch jurisdictions as the Representative may designate and will continue to assist the Underwriters in maintaining such qualifications in effect so long as required for the distribution; provided, however, that neither the Seller nor the Issuer shall be required to qualify to do business in each case from the information specified any jurisdiction where it is now not qualified or to take any action which would subject it to general or unlimited service of process in Part B any jurisdiction in which it is now not subject to service of Schedule 1;process or to file a general consent to service of process in any jurisdiction in which it is now not subject to service of process.
(f) it shall not consent If filing of the Preliminary Prospectus or Prospectus or any portion thereof is required under Rule 424(b) of the Commission, the Seller will file the Preliminary Prospectus or Prospectus, properly completed, and any supplement thereto, pursuant to any termination of or amendment Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Organizational Documents or other organizational documents Representative of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andsuch timely filing.
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to So long as any of the Pledged Collateral Notes are outstanding, the Seller or Santander Consumer, as applicable, will furnish to the Underwriters, by first-class mail, as soon as practicable: (i) all documents required to be distributed to the Noteholders; and (ii) from time to time, such other information concerning the Seller, Santander Consumer or the Issuer as the Underwriters may reasonably request.
(h) The Seller and Santander Consumer will apply the net proceeds from the sale of the Notes as set forth in connection the Prospectus.
(i) At the time of the execution and delivery of each subsequent transfer, the related Subsequent Contracts will have been duly and validly assigned to the Indenture Trustee in accordance with the transaction contemplated Indenture; and when such assignment is effected, a duly and validly perfected transfer of all such Subsequent Contracts subject to no prior lien, mortgage, security interest, pledge charge or other encumbrance created by this AgreementSantander Consumer or the Seller will have occurred. As of the related Funding Date, each of the related Subsequent Contracts will meet the eligibility criteria described in the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Santander Drive Auto Receivables Trust 2007-2), Underwriting Agreement (Santander Drive Auto Receivables Trust 2007-1)
Covenants. The Pledgor hereby Grantor covenants that during the continuance of this Agreementas follows:
(a) it shall warrant and defend its title to the Pledged CollateralThe Grantor will not, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give without providing at least 30 days’ prior written notice to Pledgee the Collateral Agent, change its legal name, identity, type of organization, jurisdiction of organization, corporate structure, or its principal place of business The Grantor will, prior to any change described in the preceding sentence, take all actions reasonably requested by the Collateral Agent to maintain the perfection and priority of the Collateral Agent’s security interest in the Collateral.
(b) The Grantor shall, at its own cost and expense, defend title to the Collateral and the First Priority lien and security interest of the Collateral Agent therein against the claim of any person claiming against or through the Grantor and shall maintain and preserve such perfected First Priority security interest for so long as this Agreement shall remain in effect.
(c) The Grantor will not sell, offer to sell, dispose of, convey, assign or otherwise transfer, grant any option with respect to, restrict, or grant, create, permit or suffer to exist any mortgage, pledge, lien, security interest, option, right of first offer, encumbrance or other restriction or limitation of any nature whatsoever on, any of the Collateral or any interest therein, except (x) with the prior written consent of the Collateral Agent or (y) sales of inventory in the ordinary course of business. Notwithstanding anything to the contrary contained herein or in any other Note Document (i) change the consent of the location Requisite Holders, along with the Collateral Agent, shall be required for any sale of Pledgor’s chief executive officeany of the Collateral or any interest therein, if such sale does not result in a prepayment of the Notes in amount at least equal to the Face Amount (as such term is defined in the Notes) of the Notes, plus accrued interest thereon; and (ii) change the Grantor may sell, sub-license or otherwise transfer rights to the therapeutic distribution rights in the License Agreement, subject to the prepayment requirements under the Notes (the “Therapeutic License Disposition”); provided, that on and after the date that an aggregate of Pledgor’s nameat least US$20,000,000 of the Notes are purchased for cash and funded, identity or structure and in any case prior to the date a definitive agreement with respect to a Therapeutic License Disposition is entered into, (A) such Therapeutic License Disposition must be approved in advance and in writing by the Collateral Agent or (iiiB) reorganization the sales price with respect to a Therapeutic License Disposition must be supported by a valuation report of an independent consultant in form and substance reasonably satisfactory to the Collateral Agent.
(d) The Grantor will keep the Collateral in good order and repair (subject to casualty and normal wear and tear) and will not use the same in violation of law or reincorporation any policy of Pledgor under insurance thereon. The Grantor will permit the laws Collateral Agent, or its designee, to inspect the Collateral at any reasonable time, wherever located.
(e) The Grantor will pay promptly when due all taxes, assessments, governmental charges, and levies upon the Collateral or incurred in connection with the use or operation of another jurisdiction, the Collateral or incurred in each case from the information specified in Part B of Schedule 1;connection with this Agreement.
(f) it Whenever Grantor, either by itself or through any agent, employee, licensee or designee, shall not consent file an application for the registration of any intellectual property with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof that relates to any termination of or amendment to the Organizational Documents or other organizational documents is in furtherance of the Company that could reasonably be expected to adversely affect the Pledged Collateral, Grantor shall report such filing to Collateral Agent. Grantor will take all reasonable and necessary steps to maintain and pursue each application (and to obtain the Pledgor’s rights relevant registration) and to maintain each registration of all intellectual property included in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and.
(g) it shall indemnify Grantor will not amend the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any License Agreement without the prior written consent of the Pledged Collateral Agent.
(h) The Grantor shall not create, assume, incur or have outstanding any debt for borrowed money, except for that certain Guaranty and Security Agreement, dated on or about the date hereof, by Grantor in connection with favor of the transaction contemplated by this Longitude Venture Partners II, L.P., subject, however, to the terms of the Intercreditor Agreement.
(i) The Grantor shall promptly notify the Collateral Agent of any changes to the information contained in the Schedules hereof.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Evolus, Inc.), Guaranty and Security Agreement (Evolus, Inc.)
Covenants. In addition to other undertakings made under this Agreement, the Borrower undertakes and agrees that, as of the date of this Agreement and until such time that all of its liabilities and obligations under this Agreement and all other relevant documents have been fully discharged and performed, it shall duly perform the following obligations:
8.1. After execution of this Agreement and prior to the Initial Drawdown, the Borrower shall issue and deliver to the Agent a Note in an amount of the Total Commitment payable to the Agent (in the form and substance of EXHIBIT III hereto) and a Note Authorization (in the form and substance of EXHIBIT IV hereto). The Pledgor Borrower hereby covenants unconditionally and irrevocably authorizes the Agent, subject to occurrence of an Event of Default, to insert the maturity date, interest rate (being the Default Rate) and the commencement date of the interest period of such Note in accordance with relevant provisions of this Agreement and to exercise all rights under the Note. With respect to the Note (and any Note issued in substitution therefor), the Borrower shall, on or before the date falling two years from the date of issuance thereof, issue and deliver to the Agent another Note identical in all substantive respects with the existing Note (save that during the continuance face amount may be reduced in accordance with the then Total Commitment) to replace the existing Note. The Agent and the Banks agree that the Note and the Note Authorization held by the Agent shall be immediately and unconditionally returned to the Borrower upon discharge of the Borrower’s obligations hereunder in full.
8.2. The Borrower shall at all times: (a) maintain the existence, nature of business and scope of business of its company or other reasonable extended business within the scope of this Agreement:, and maintain all approvals, licenses and permits necessary or desirable for the conduct of its business and operations or the ownership of its properties (including but not limited to the environment, pollution, waste disposal, and securities exchange, etc.) and for the timely performance of this Agreement; (b) conduct its business in a regular manner; (c) comply with all laws, regulations and requirements issued by all government authorities with jurisdiction over such matters; (d) keep and maintain proper books and records; and (e) pay and discharge all taxes, assessments and governmental charges or levies imposed upon it, its income, profits or properties.
8.3. The Borrower shall ensure at all times that the Agent’s and the Banks’ claims against the Borrower under this Agreement shall rank at least pari passu in priority of payment with all unsecured claims of any other person against the Borrower (except for those preferred by operation of law or those required during the ordinary course of business).
8.4. In the event of any of the following, the Borrower shall promptly notify the Agent in writing thereof and inform the Agent of countermeasures that it has adopted: (a) any substantive or material change to the Borrower’s business operations; (b) any material change to the primary shareholders, directors, supervisors, primary managers (general manager level and above), financial condition, or major assets (but excluding replacement of proxies appointed by corporate shareholders) of the Borrower; (c) occurrence of any Event of Default or prospective Event of Default; or (d) occurrence of any other event which could affect this Facility, the Borrower’s creditworthiness or ability to perform.
8.5. During the term of this Facility and until such time that the Borrower has completely discharged all its liabilities under this Agreement, the Borrower shall not, without prior written consent of the Majority Banks (which consent shall not be unreasonably withheld):
(a) it shall warrant except for those asset transfers or disposals between the Borrower and defend its title Subsidiaries on an arms length basis, sell, lease, transfer or otherwise dispose of its business or assets in amounts equal to the Pledged Collateral20% or more of its then total assets, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement whether in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoevera single transaction or on an aggregate basis;
(b) except as otherwise permitted in this Agreement make any material change to the scope or the Finance Documentsnature of its business; (c) conduct any transaction which is not at arms length basis; (d) create, it shall not sellincur, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral increase or suffer or permit to exist any encumbrance security interest or encumbrances in favor of any third party on any of its currently exiting and/or future assets or revenue, except for (A) security interests which are existing and have been disclosed to the Pledged CollateralAgent and the Banks in writing prior to the date hereof or security interests required to be provided during the ordinary course of business, (B) security interests over any future machinery acquired pursuant to a government sponsored program after the date hereof in favor of banks securing the financing of the purchase price or cost thereof; (e) except for those provided in accordance with its articles of incorporation or its internal rules governing the extension of loans, provide loans to any other than Permitted Liens;parties; or (f) enter into liquidation or dissolution.
8.6. During the term of this Facility, the Borrower shall not, without prior written consent of the Majority Banks, (a) enter into any merger or consolidation with others, (b) effecting any spin-off or capital reduction, (c) it shall not take except for the Acquisition, commencing from the Company date hereof, make any undertaking investment in any other companies in an accumulative aggregate amount of more than NT$ 10,000,000,000, or security in respect of its liability hereunder or in respect (d) acquire material assets of any other liability companies; provided, that the consent of the Company Majority Banks shall not be required for the following: (i) investment in any Subsidiary existing prior to the Pledgor date hereof, (ii) entering into a merger under which the Borrower is the surviving entity, (iii) merger or consolidation with its Subsidiary(ies), or (iv) effecting a spin-off under which the assignee of the assets is a Subsidiary and would not cause a violation to Section 8.5(a) hereof; so long as any of the Pledgor above shall not prove nor have cause any material adverse impact on the right of proofBorrower’s business operation, in competition with the Pledgee, for any monies whatsoever owing from the Company financial condition or ability to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;perform hereunder.
(d) it 8.7. The Borrower shall furnish to Pledgee from time to time statements upon request by the Agent provide information, records and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all documents in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change respect of the location Acquisition Contract, this Agreement and its ability to perform same, to the extent it does not interfere with the normal operations of Pledgorthe Borrower, and shall permit the representatives or agents of the Agent to enter the premises of the Borrower to review (or make copies or extracts of) the various accounts, records or documents that are relevant to the Borrower’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor ability to perform under the laws of another jurisdictionAcquisition Contract, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability related agreements. To the extent deemed to exercise be necessary by the sameMajority Banks, or cause the Agent may retain outside persons to conduct such inspection; provided, that all such persons participating in the inspection shall be subject to confidentiality obligations.
8.8. (a) Throughout the term hereof, within 30 days after the end of each first and third fiscal quarter of the Borrower, the Borrower shall provide to the Agent and the Banks with copies of its quarterly report for such quarter, prepared and reviewed on an Event unconsolidated (and consolidated, if available) basis, including therein its balance sheet as of Default to occur; and
(g) it the end of such fiscal quarter, statement of its income and cash flow statement. Each of such reports shall indemnify be prepared by the Pledgee fromBorrower, reviewed by a creditable independent public accounting firm in accordance with applicable generally accepted audit standards, and hold it harmless against, any and all liabilities the information contained therein shall also be presented in accordance with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementapplicable generally accepted accounting principles consistently applied.
Appears in 2 contracts
Sources: Syndicated Loan Agreement (Advanced Semiconductor Engineering Inc), Syndicated Loan Agreement (Advanced Semiconductor Engineering Inc)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Seller hereby agrees and acknowledges that it shall warrant will file any and defend its title all tax reports and timely pay any tax due required under the applicable laws before the Repurchase Closing (including but not limited to the Pledged CollateralAnnouncement of the SAT on Several Issues Concerning the Enterprise Income Tax on Indirect Property Transfer by Non-Resident Enterprises promulgated by the SAT in February 3, 2015 (2015年2月3日国家税务总局颁布的《关于非居民企业间接转让财产企业所得税若干问题的公告》)(the “Announcement 7”)) in connection with the transaction contemplated by this Agreement, and the Company shall have no obligations to pay or withhold any tax of any nature that is required by the applicable laws to be paid by the Seller (or its affiliates) in connection with the transaction contemplated by this Agreement. The Seller shall provide a copy of (i) the full set of its application or reporting documents and materials submitted to the relevant tax authorities in connection with the transaction contemplated by this Agreement, together with all material rights proof or confirmation of submission or delivery and return receipts, as promptly as reasonably practicable after each relevant submission and (ii) the security interest (including corresponding acknowledgements from the priority thereof) tax authorities as promptly as reasonably practicable after the receipt of such acknowledgements. If the Seller has not made such filing and payment before the Repurchase Closing, the Company shall be entitled to deduct an amount equal to 10% of the Pledgee conferred Repurchase Price of the Seller (the “Holdback Amount”) before paying the Repurchase Price to the Seller, and shall be entitled to, at the costs of the Seller, make the filling and pay the tax due required under Announcement 7 in connection with the transaction contemplated by this Agreement in on behalf of the Seller. If the Holdback Amount is not enough to cover the costs incurred and tax paid, the Company shall be entitled to claim compensation/reimbursement from the Seller. If the Holdback Amount exceeds the costs incurred and tax paid, the Company shall refund the rest to the Pledged Collateral, in each case at Seller. The Seller shall provide to the cost of Company on the Pledgor against date hereof all the claims and demands of all persons whomsoever;documentation necessary for the said filing.
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it The Seller shall indemnify the Pledgee fromCompany for any failure to withhold claims brought by any applicable governmental tax bureau or authority, and hold for any losses, damages, and costs incurred by it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any as a result of the Pledged Collateral failure by the Seller (or its affiliates) to fulfill any tax obligations as required by the applicable laws, including without limitation any taxes, late payment fees, penalties or fines imposed by any tax authorities in any applicable jurisdiction (including People’s Republic of China), in connection with the transaction contemplated by this Agreement.
Appears in 2 contracts
Sources: Share Repurchase Agreement (Genetron Holdings LTD), Share Repurchase Agreement (Genetron Holdings LTD)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this Agreementseveral Underwriters as follows:
(a) During the period beginning on the date hereof and ending on the later of the Second Closing Date and such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered (assuming the absence of Rule 172 under the Act), in connection with sales by an Underwriter (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462(b) Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Underwriters for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative or counsel to the Underwriters reasonably objects. Subject to this Section 4(a), immediately following execution of this Agreement, the Company will prepare the Prospectus containing the Rule 430A Information and other selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the Act or the Rules and Regulations or as the Representative and the Company may deem appropriate, and if requested by the Representative, an Issuer Free Writing Prospectus containing the selling terms of the Securities and such other information as the Company and the Representative may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each Issuer Free Writing Prospectus.
(b) The Company will advise the Representative, promptly after it shall warrant receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto, or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and defend the Company will promptly use its title best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A or 430B, as applicable, under the Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(A) During the Prospectus Delivery Period, the Company will comply as far as it is able with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event shall occur as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) to comply with the Act, the Company will promptly notify the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(B) 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 Statutory Prospectus or the Prospectus relating to the Pledged CollateralSecurities 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 promptly will notify the Representative 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.
(d) The Company shall take or cause to be taken all necessary action to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative shall reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.
(e) The Company will furnish or make available to the Underwriters and counsel for the Underwriters, at the Company’s expense, copies of the Registration Statement (which will include three complete manually signed copies of the Registration Statement and all consents and exhibits filed therewith), and to the Underwriters and any dealer each Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, the Issuer Free Writing Prospectus, and all material rights amendments and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and supplements to the Pledged Collateralsuch documents, in each case at as soon as available and in such quantities as the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee Representative may from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;request.
(f) it shall not consent to any termination During a period of five years commencing with the date hereof, the Company will furnish or amendment make available to the Organizational Documents or other organizational documents Underwriters, upon receipt of a written request therefor, copies of all periodic and special reports furnished to the stockholders of the Company that could reasonably be expected to adversely affect and all information, documents and reports filed with the Pledged CollateralCommission, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement FINRA or any securities exchange (other Finance Document than any such information, documents and reports that are filed with the Commission electronically via E▇▇▇▇ or their ability to exercise the same, or cause an Event of Default to occur; andany successor system).
(g) it The Company will make generally available to its security holders as soon as practicable, but in no event later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall indemnify satisfy the Pledgee fromprovisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) The Company, and hold it harmless againstwhether or not the transactions contemplated hereunder are consummated or this Agreement is otherwise terminated, any and all liabilities with respect to, will pay or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined cause to be payable with respect paid (A) all expenses (including transfer taxes allocated to any of the Pledged Collateral or respective transferees) incurred in connection with the transaction delivery to the Underwriters of the Securities, (B) all expenses and fees (including, without limitation, fees and expenses of the Company’s accountants and counsel, but excluding, for the avoidance of doubt, reasonable fees and disbursements of Underwriters’ counsel, which shall be paid pursuant to clause (I) below) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, each Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment thereof or supplement thereto, and the printing, delivery, and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions), (C) all reasonable filing fees and reasonable fees and disbursements of the Underwriters’ counsel incurred in connection with the qualification of the Securities for offering and sale by the Underwriters or by dealers under the securities or blue sky laws of the states and other jurisdictions which the Representative shall designate, (D) the fees and expenses of any transfer agent or registrar, (E) the reasonable filing fees and fees and disbursements of Underwriters’ counsel incident to any required review and approval by FINRA of the terms of the sale of the Securities, (F) listing fees, if any, (G) the costs and expenses of the Company relating to investor presentations or any “roadshow” undertaken in connection with the marketing of the Securities, (H) all other costs and expenses of the Company incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein and (I) all other costs and expenses of the Underwriters (including reasonable fees and disbursements of counsel) incident to the performance of its obligations hereunder not otherwise specifically provided for herein; provided, however, such costs and expenses provided for in clause (C), (E) and (I) shall not exceed $100,000 in the aggregate. The Company shall not in any event be liable to the Underwriters for loss of any anticipated profits from the transactions contemplated by this Agreement.
(i) The Company intends to apply the net proceeds from the sale of the Securities to be sold by it hereunder for the purposes set forth in the Time of Sale Disclosure Package and in the Prospectus.
(j) The Company will not, without the prior written consent of the Representative, from the date of execution of this Agreement and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), (A) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (B) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, except for (A) sales of the Securities to the Underwriters pursuant to this Agreement, (B) grants of options, grants of restricted stock units or the issuance of shares of Common Stock or other equity awards by the Company pursuant to existing equity incentive plans, as such plans may be amended, restated, replaced or consolidated, (C) issuance of shares upon exercise, vesting or conversion of securities outstanding as of the date hereof and (D) any issuance of options or restricted stock units to consultants of the Company in the ordinary course of business. The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period. If
(1) during the last 17 days of the Lock-Up Period, (a) the Company issues an earnings release, (b) the Company publicly announces material news or (c) a material event relating to the Company occurs; or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions in this Agreement, unless otherwise waived by the Representative in writing, shall continue to apply until the expiration of the date that is 18 calendar days after the date on which (a) the Company issues the earnings release, (b) the Company publicly announces material news or (c) a material event relating to the Company occurs; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Act, and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. The Company will provide the Representative and each person subject to the Lock-Up Agreement (as defined below) with prior notice of any such announcement that gives rise to the extension of the Lock-Up Period.
(k) The Company has caused to be delivered to the Representative prior to the date of this Agreement a letter, in the form of Exhibit A hereto (the “Lock-Up Agreement”), from each of the Company’s directors, officers and stockholders identified on Schedule V. The Company will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(l) The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and has not effected any sales of Common Stock which are required to be disclosed in response to Item 701 of Regulation S-K under the Act which have not been so disclosed in the Registration Statement.
(m) Other than as contemplated by this Agreement, the Company will not incur any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(n) During the Prospectus Delivery Period, the Company will file with the Commission such periodic and special reports as required by the Rules and Regulations.
(o) The Company will maintain such controls and other procedures, including without limitation those required by Sections 302 and 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to the Company is made known to them by others within those entities.
(p) The Company will comply in all material respects with all applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(q) The Company represents and agrees that, unless it obtains the prior written consent of the Representative, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Act, required to be filed with the Commission; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II. Any such free writing prospectus consented to by the Company and the Representative 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 Commission filing where required, legending and record keeping.
Appears in 2 contracts
Sources: Purchase Agreement (Palatin Technologies Inc), Purchase Agreement (Palatin Technologies Inc)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement4.1 I shall ensure that:
(a) it shall warrant if the Lessee/Hirer is a company:
(i) the Lessee/Hirer does not become insolvent;
(ii) the Lessee/Hirer and defend its title any other companies belonging to the Pledged Collateralsame group of companies as it (each such company a “fellow group company”) does not enter into any amalgamation, and all material rights and demerger, merger or corporate reconstruction, without your consent; and
(iii) no change of Control in the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeverLessee/Hirer occurs without your consent;
(b) except as otherwise permitted I and any Surety will not be in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in default under any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted LiensSecurity;
(c) it shall I pay on time any amount due under any agreement I have with you and do not take from the Company any undertaking or security in respect of its liability hereunder or in respect of do anything under any other liability of the Company agreement I have with you entitling you to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgorterminate it;
(d) it shall furnish I, any Surety or any other person gives you correct and not misleading information in connection with this Agreement or any Security (I, any Surety and/or any other person (as the case may be), may incur civil and/or criminal liability by making intentional or negligent misrepresentation(s) and/or providing fraudulent information in this Agreement or a Security, and/or omitting to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detailprovide relevant information);
(e) it shall give at least 30 days’ prior written notice to Pledgee my financial position and the financial position of any (i) change Surety does not deteriorate so that in your reasonable opinion my ability to meet my obligations under this Agreement or any Security or the ability of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor any Surety to meet its obligations under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1any Security is materially adversely affected;
(f) it shall not consent I and any Surety comply in all respects with all laws to which I and any termination of Surety may be subject, if failure so to comply would materially impair my or amendment the Surety’s ability to the Organizational Documents perform my or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee its obligations under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; anda Security;
(g) it shall indemnify the Pledgee from, I and hold it harmless against, any and all liabilities with respect to, Surety notifies you in writing as soon as I or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any Surety becomes aware of the Pledged Collateral occurrence of any event or in connection with circumstance which might adversely affect my or its ability to perform my or its obligations under this Agreement or a Security.
4.2 Any Security provided by me or any Surety for the transaction contemplated purposes of this Agreement shall also secure all other indebtedness owed by this Agreementme and any fellow group company, including any Surety (if applicable) to you and/or any financing you may subsequently make available to me and any fellow group company (if applicable) and the indebtedness that results from the same.
Appears in 2 contracts
Sources: Finance Lease/Hire Purchase Agreement, Finance Lease/Hire Purchase/Agility/Hire Purchase With Balloon Agreement
Covenants. The Pledgor hereby covenants that during From and after the continuance execution and delivery of this Agreement:
Agreement until the Termination Date, each Stockholder hereby: (a) it shall warrant and defend its title agrees not to exercise, assert or perfect, or attempt to exercise, assert or perfect, any rights of appraisal or rights of dissent from the Merger that such Stockholder may have with respect to the Pledged CollateralCovered Securities; (b) agrees to permit Parent and Acquisition Sub to publish and disclose in the Offer Documents and, and all material rights and if the security interest (including Required Company Stockholder Vote is required by the priority thereof) of DGCL, the Pledgee conferred by this Agreement in and to the Pledged CollateralProxy Statement, if, in each case at case, that Parent, Acquisition Sub or the cost Company, as applicable, reasonably determines is required to be disclosed by applicable Legal Requirements, such Stockholder’s identity and ownership of Company Common Stock and the nature of the Pledgor Stockholder’s commitments, arrangements and understandings under this Agreement; (c) agrees not to commence or participate in, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Acquisition Sub, the claims and demands Company or any of all persons whomsoever;
(b) except as otherwise permitted in their respective successors relating to the negotiation, execution or delivery of this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge Merger Agreement or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
Contemplated Transactions; (d) it shall furnish agrees not to Pledgee from time issue any press releases or otherwise make any public statements with respect to time statements the transactions contemplated herein without the written approval of Parent (which will not be unreasonably conditioned, delayed or withheld), except as may be required by applicable Legal Requirements; and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 agrees to notify Parent promptly (and in any event within two business days’ prior written notice to Pledgee ) in writing of the number of any additional shares of Company Common Stock acquired by such Stockholder, if any, after the date hereof. From and after the execution and delivery of this Agreement until the Termination Date, each Stockholder hereby agrees that he will not solicit, initiate or knowingly encourage, assist or facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in as each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights is defined in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(gMerger Agreement) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementPerson.
Appears in 2 contracts
Sources: Tender and Support Agreement (Maxim Integrated Products Inc), Tender and Support Agreement (Volterra Semiconductor Corp)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Corporation covenants that: (i) so long as any Options evidenced hereby remain outstanding, it shall warrant reserve and defend there shall remain unissued out of its title authorized capital a sufficient number of Common Shares to satisfy the right of purchase provided for herein; and (ii) all Common Shares which shall be issued upon the exercise of the right to purchase provided for herein, upon payment of the Exercise Price therefor, shall be issued as fully paid and non-assessable and free from all taxes, liens and charges with respect to the Pledged Collateralissue thereof, and all material rights and the security interest (including the priority thereof) other than which may arise by virtue of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Holder's personal circumstances.
(b) except While any Options evidenced hereby remain outstanding, the Corporation shall comply with the securities legislation applicable to it in order that the Corporation continue as otherwise permitted a reporting issuer, or analogous entity, not in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in default of any manner any part requirements of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;such legislation.
(c) it shall not take from The Corporation shall, at its expense, expeditiously use its commercially reasonable best efforts to obtain the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability listing on the TSX and the AMEX of the Company Common Shares issuable upon the exercise of the right to purchase provided for herein. The Corporation shall, at its expense, include the registration of the resale of the Common Shares underlying the Options in its registration statement (the "Registration Statement") filed in connection with the flow-through shares and common shares issued on the date of this Compensation Option Certificate, and, subject to the Pledgor terms and conditions of the registration rights agreement, each dated July 15, 2009 (the "Registration Rights Agreement"), between the Corporation and the Pledgor subscriber counterparty thereto, shall not prove nor have use its commercially reasonable efforts to register the right resale of proofthe Common Shares underlying the Options in the United States as soon as possible so that the legend referred to in Section 27 (d) may be removed. The Corporation and the Holder agree to be bound by the terms of the Registration Rights Agreement as if they were original parties thereto, in competition with and the Pledgee, for any monies whatsoever owing from Holder agrees to complete and execute the Company Notice and Questionnaire prior to the Pledgor, Corporation including the Common Shares in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Registration Statement.
(d) it The Corporation shall furnish use its commercially reasonable best efforts to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, do or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect done all things necessary to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementpreserve and maintain its corporate existence.
Appears in 2 contracts
Sources: Securities Agreement (Apollo Gold Corp), Securities Agreement (Apollo Gold Corp)
Covenants. The Pledgor hereby Company agrees and covenants that during the continuance of this Agreementas follows:
(a) it (i) Prior to May 1, 2020, the Company will not take any action to accept, solicit, initiate, encourage, or assist the submission of any proposal, negotiation, or offer from any person or entity relating to any debt or equity financing of the Company from any person or entity that engages in, as a material part of its business, the provision of dialysis services (each, a “Competitor”); and (ii) following May 1, 2020, so long as the Note remains outstanding, any time the Company proposes to accept any debt or equity financing (including securities convertible into equity) from a Competitor, the Company shall warrant and defend its title deliver to the Pledged Collateral, Investor the terms and all material rights and the security interest conditions (including the priority thereofa term sheet, if applicable) of such financing. The Investor shall have ten (10) business days to elect to make an investment on the Pledgee conferred by this Agreement same terms in lieu of such Competitor. If the Investor does not elect to make such investment, the Company and Competitor may consummate a financing on the same terms as delivered to the Pledged Collateral, in each case at Investor. Any amendment or change to a proposed financing shall be treated the cost same as a new financing for purposes of the Pledgor against the claims and demands of all persons whomsoever;this subsection 6(a).
(b) except In the event that the Company, at any time prior to conversion or repayment of the Note, issues any convertible security (other than options to purchase Common Stock under the 2019 Stock Plan) (each a “Subsequent Convertible Instrument” and, collectively, the “Subsequent Convertible Instruments”) on terms that differ from the Note, then, in each case, the Company will provide to the Investor written notice of such new issuance, including the terms of any Subsequent Convertible Instrument, no later than five (5) days after the closing date thereof. In the event the Investor determines, in its sole discretion, that any Subsequent Convertible Instrument contains terms more favorable to the holder(s) thereof than the terms set forth in its Note, the Investor will promptly notify the Company of such determination and the Note shall automatically be deemed to be amended to reflect such more favorable terms (subject to appropriate adjustment based on economic terms).
(c) In the case of (i) a Qualified Financing or (ii) a Non-Qualified Financing in which the Investor elects to convert the Note, the Company will ensure that the Investor shall be entitled to the same economic rights provided to all investors in such financing and to the same contractual rights provided to all investors who are investing a comparable (or lower) dollar amount in such financing, and shall ensure that the Investor shall be a “Major Investor” for all purposes of the financing documents entered into in connection with the Qualified Financing or Non-Qualified Financing, as otherwise permitted applicable.
(d) The Investor and the Company will coordinate in this Agreement good faith on a statement disclosing DaVita Inc. and its affiliates’ (“DaVita”) involvement with the Company. The Company may disclose the Investor’s name as a passive investor in the Company to potential investors in a Qualified Financing or a Non-Qualified Financing, provided, that, (i) the Finance DocumentsCompany shall notify the Investor prior to such disclosure and (ii) the Company shall facilitate an introduction between the Investor and any potential investor so disclosed to the extent requested by the Investor. Except as provided above, it shall the Company will not selluse the name or trademarks of DaVita or refer to DaVita’s relationship to the Company, assign, transfer, charge, pledge or encumber in any manner any part form of advertising, publicity or release without the Investor’s prior written approval in the Investor’s sole direction. Except as provided above, the Company will not disclose, publish or make known to third parties that the Investor is associated with DaVita or that DaVita is an indirect investor in the Company without the Investor’s prior written consent.
(e) So long as the Note remains outstanding, the Company shall not, without the prior written consent of the Pledged Collateral Investor:
(i) change the composition of the company’s Board of Directors, except to the extent a member of the Board of Directors resigns, retires or is incapable to perform due to death or disability;
(ii) create, incur, assume guarantee or be or remain liable with respect to any Indebtedness or allow or suffer to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets owned by the Company, in each case except as reflected on the Pledged Collateral, other than Permitted Liens;
(c) it Disclosure Schedules. “Indebtedness” shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of include any (i) change of the location of Pledgor’s chief executive officeindebtedness for borrowed money, (ii) change of Pledgor’s nameindebtedness evidenced by a note, identity bond, debenture or structure similar instrument or commercial paper (including purchase money obligations), (iii) reorganization obligations to reimburse or reincorporation repay in respect of Pledgor letters of credit, surety bonds or similar instruments, (iv) obligations under financing leases, and (v) capital leases for equipment entered into after the laws date of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment this Agreement to the Organizational Documents or other organizational documents extent that the aggregate value of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority all of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreement.such new capital leases exceed $150,000;
Appears in 2 contracts
Sources: Note and Warrant Purchase Agreement (Miromatrix Medical Inc.), Note and Warrant Purchase Agreement (Miromatrix Medical Inc.)
Covenants. The Pledgor hereby covenants that during That Registrant’s eligibility to register for and use the continuance of Domain Name is subject to all the terms, conditions, policies and requirements contained in the Proposal, the Registration Agreement and this Agreement:
(a) it shall warrant and defend its title to . As between the Pledged Collateral, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged CollateralParties, in each case at the cost event of a conflict between the Pledgor against Proposal, the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Proposal Agreement or the Finance DocumentsRegistration Agreement, the Proposal shall take precedence over the Registration Agreement and the Proposal Agreement shall take precedence over both the Proposal and the Registration Agreement. Registrant acknowledges that all of the information and representations that it provided in its Proposal are current, complete, reliable and accurate and any material misrepresentations in the Proposal or in the registration process will be deemed a breach of this Agreement and constitute a sufficient basis for withdrawing Registrant’s eligibility to register the Domain Name and/or denial, rejection or termination of the registration of the Domain Name; Registry Operator shall provide an Authorization Code or an equivalent method to Registrant within five (5) business days of the Effective Date of this contract enabling it to register the Domain Name with a Registrar; Registrant agrees, as more fully described in Exhibit A to this Agreement, that it must launch a fully compliant Domain Name website within six (6) months after receipt of the Authorization Code or an equivalent method from Registry Operator, and have fully migrated its existing business operations from its previous domain name to the Domain Name website within 18 months of the receipt of the Authorization Code or an equivalent method; Registrant’s failure to launch and maintain the Domain Name website as specified in the Proposal and this Agreement may, at fTLD’s sole discretion, result in the imposition of additional fees until such time as the Registrant is in compliance with this Agreement or, if the Registrant fails to comply, the revocation of the Domain Name; and The Domain Name may not sellbe assigned, assigntransferred, sold or conveyed to any third party except in connection with a sale of all or substantially all of the equity assets of the Registrant and in accordance with ICANN’s Inter-Registrar Transfer Policy. In such circumstances, and as a condition of assignment, transfer, charge, pledge sale or encumber in any manner any part of conveyance the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proofsuccessor must confirm, in competition writing to Registry Operator, and agree to be bound to all the terms, conditions, policies and requirements contained in the Proposal, the Registration Agreement and this Agreement. This Agreement shall be governed by and construed in accordance with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B Commonwealth of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementVirginia.
Appears in 2 contracts
Sources: Request for Proposal Agreement, Request for Proposal Agreement
Covenants. The Pledgor hereby covenants that during the continuance of this AgreementEach Stockholder hereby:
(a) it shall warrant irrevocably waives, and defend its title agrees not to exercise, any rights of appraisal or rights of dissent from the Merger that such Stockholder may have with respect to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeverShares;
(b) except as otherwise permitted in agrees upon receipt of written inquiry from Parent to promptly notify Parent of the number of any New Shares acquired by such Stockholder after the date hereof and prior to the Expiration Date. Any New Shares shall automatically be subject to the applicable terms of this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance as though owned by Stockholder on the Pledged Collateral, other than Permitted Liensdate hereof;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of agrees to permit the Company to publish and disclose, including in filings with the Pledgor Securities and Exchange Commission and in the press release announcing the transactions contemplated by the Merger Agreement (the “Announcement Release”), this Agreement and the Pledgor shall not prove nor have Stockholders’ identity and ownership of the right Shares and the nature of proofthe Stockholders’ commitments, arrangements and understandings under this Agreement, in competition with each case, to the Pledgee, for any monies whatsoever owing from extent the Company reasonably determines that such information is required to be disclosed by applicable Law (or in the case of the Announcement Release, to the Pledgor, in any insolvency extent the information contained therein is consistent with other disclosures being made by the Company or liquidation, the Stockholders); provided that the Company shall give each Stockholder and its or analogous proceedings under any applicable law, of the Pledgor;his legal counsel a reasonable opportunity to review and comment on such publications or disclosures prior to being made public; and
(d) it shall furnish and does authorize Parent or its counsel to Pledgee from time to time statements and schedules further identifying and describing notify the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of PledgorCompany’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company transfer agent that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable there is a stop transfer order with respect to any all of the Pledged Collateral Shares (and that this Agreement places limits on the voting and transfer of the Shares); provided that if Parent or in connection with its counsel gives such notification, it shall on the transaction contemplated by this Agreementearlier of the (x) Expiration Date and (y) the date on which the Company Stockholder Approval is obtained further notify the Company’s transfer agent that the stop transfer order (and all other restrictions) have terminated as of such date.
Appears in 2 contracts
Sources: Voting and Support Agreement (Dollar Tree Inc), Voting and Support Agreement (Levine Howard R)
Covenants. The Pledgor hereby covenants and agrees that during from and after the continuance of this Agreementdate hereof and until the Obligations are fully, finally and irrevocably paid and performed:
(a) it shall warrant a. without the prior written consent of the Bank, the Pledgor will not, except as expressly provided in the last grammatical paragraph of Section 7 of the Loan Agreement, sell, assign, transfer, exchange or otherwise dispose of, or grant any option with respect to, the Collateral, nor will he create, incur or permit to exist any lien, security interest or encumbrance with respect to any of the Collateral, or any interest therein, except for the lien provided under this Pledge Agreement, and defend its title subject to the Pledged Collateralright of contest set forth in Paragraph 3, the Pledgor will take any action necessary to remove any such lien and all material rights will defend the right, title and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement Bank in and to the Pledged Collateral, in each case at the cost of the Pledgor Collateral against the claims and demands of all persons whomsoeverpersons;
b. Pledgor will warrant and defend his ownership of the Collateral and the security interest created by this Pledge Agreement against all claims of all other persons (bother than Bank and persons claiming through Bank) except as otherwise permitted in this Agreement or and will maintain and preserve the Finance Documents, it Collateral and such security interest;
c. without the prior written consent of the Bank (which shall not sellbe unreasonably withheld, assignconditioned or delayed), transfer, charge, pledge the Pledgor will not vote to enable KRGLP or encumber Kite Realty to issue any stock or other securities of any nature in any manner any part of exchange or substitution for the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee d. from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requestsPledgor will, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights expense, duly and promptly execute any and all further instruments and documents and take such further action as the Bank may reasonably deem desirable to obtain the full benefits of this Pledge Agreement, including, without limitation, the filing of any financing or continuation statements under any Uniform Commercial Code, and the Pledgor also hereby authorizes Bank to file any such financing statement or continuation statement on his behalf to the extent permitted by applicable law;
e. whether before or after any Event of Default, the Pledgor shall hold all payments received upon liquidation or dissolution of KRGLP or Kite Realty or upon any distribution of any capital or property by KRGLP or Kite Realty in respect of the Collateral in trust for the Bank segregated from other funds of the Pledgor, and shall forthwith upon receipt by the Pledgor deliver the same to the Bank in the Pledged Collateralsame form as received by the Pledgor, duly endorsed by the validityPledgor to Bank, perfection or priority if required (any such payments received by the Bank shall be held by the Bank subject to the terms of this Pledge Agreement and shall not be applied to the security interests Obligations except as permitted by Paragraph 6 hereof);
f. after the occurrence of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it Default, the Pledgor shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any payments of the Pledged Collateral every kind received under or in connection with any of the transaction contemplated Collateral in trust for the Bank, segregated from other funds of the Pledgor, and shall forthwith upon receipt by this Agreementthe Pledgor deliver the same to the Bank in the same form as received by the Pledgor, duly endorsed by the Pledgor to the Bank, if required;
g. subject to the right of contest provided in Paragraph 3, the Pledgor will pay prior to delinquency all taxes and assessments against any of the Collateral;
h. the Pledgor will not consent to, or vote for, any modification or amendment to, or the termination, suspension or cancellation of the Partnership Agreement that impairs the Bank’s interest in the Collateral without the prior written approval of Bank; and
i. The Pledgor shall cause KRGLP and Kite Realty to enter into an Acknowledgment and Consent in the form attached hereto as Exhibit A. The Pledgor shall cooperate with Bank in such actions undertaken or initiated by Bank as may be reasonably necessary under applicable law so that Bank has a first priority perfected security interest in the Collateral.
Appears in 2 contracts
Sources: Collateral Pledge Agreement (Kite Alvin E JR), Collateral Pledge Agreement (Kite John A)
Covenants. (a) The Pledgor hereby Issuer covenants and agrees with the several Underwriters that it will (i) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430B of the Rules and Regulations; (ii) not file any amendment to the Registration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations; and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(b) The Issuer has not distributed and, without the prior consent of the Representatives, it will not distribute any prospectus or other written offering material (including, without limitation, any offer relating to the Shares that would constitute a Free Writing Prospectus) in connection with the offering and sale of the Shares, other than the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer and the Representatives, it will not make, any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and the Representatives is listed on Schedule III hereto. The Issuer has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, any Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
(c) The Issuer will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Issuer.
(d) The Issuer will advise the Representatives promptly (i) when any post-effective amendment to the Regulation Statement shall become effective; (ii) of receipt of any comments from the Commission; (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Issuer will use commercially reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(e) The Issuer will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents and furnish such information as may be reasonably required for that purpose, provided the Issuer shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Issuer will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(f) The Issuer will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus and any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Issuer will deliver to, or upon the order of, the Representatives during the continuance period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. At the request of the Representative, the Issuer will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representatives may reasonably request.
(g) The Issuer will comply with the Securities Act and the Rules and Regulations, and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Issuer promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(h) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication 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 supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(i) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited), covering a period of at least 12 consecutive months beginning with the first fiscal quarter of the Issuer occurring after the “effective date” of the Registration Statement (as defined in Rule 158), which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(j) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(k) The Issuer covenants and agrees that no offering, sale, short sale or other disposition of any shares of Common Stock of the Issuer or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement:
, directly or indirectly, by the Issuer otherwise than hereunder or with the prior written consent of the Representatives; provided, that this provision will not (ai) it shall warrant restrict the Issuer from awarding options to purchase shares of its Common Stock pursuant to employee benefit plans as described in the Registration Statement, the Prospectus and defend its title the Disclosure Package, (ii) apply to the Pledged CollateralShares to be sold hereunder, and all material rights and (iii) apply to the security interest (including the priority thereof) issuance of shares of Common Stock of the Pledgee conferred by this Agreement in and Issuer or securities convertible or exercisable or exchangeable for shares of Common Stock of the Issuer pursuant to the Pledged Collateralexercise or conversion of warrants, options, or other convertible or exchangeable securities, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance which are outstanding on the Pledged Collateraldate hereof and described in the Prospectus and the Disclosure Package, other than Permitted Liens;
(civ) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability apply to Common Stock of the Company to one or more counterparties in connection with the Pledgor and consummation, by the Pledgor Issuer, of a strategic partnership, joint venture, collaboration or acquisition or license of any business products or technology; provided that with respect to clause (iv), the aggregate number of shares of Common Stock issuable shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, exceed one percent (1%) of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules outstanding Common Stock immediately following the Closing Date; provided further identifying and describing that in the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee case of any clauses (i) change of the location of Pledgor’s chief executive office), (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation and (iv) each recipient of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it such securities shall not consent agree to any termination of or amendment be subject to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights transfer restrictions contained in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
Lock-Up Agreements (gas defined below) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any such securities for the remainder of the Pledged Collateral restricted period, as described therein and shall deliver to the Representative such Lock-Up Agreement prior to such issuance.
(l) The Issuer will use commercially reasonable efforts to list, subject to notice of issuance, the Shares on The Nasdaq Stock Market.
(m) The Issuer has caused each of the persons listed on Schedule II hereto to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in connection the form of Exhibit A hereto, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Issuer or other capital stock of the Issuer, or any other securities convertible, exchangeable or exercisable for shares of Common Stock or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the transaction contemplated prior written consent of each of the Representatives (“Lockup Agreements”).
(n) The Issuer shall apply the net proceeds of its sale of the Shares in all material respects as described under the heading “Use of Proceeds” in the Registration Statement, the Prospectus and the Disclosure Package.
(o) The Issuer shall not invest, or otherwise use the proceeds received by this Agreementthe Issuer from its sale of the Shares in such a manner as would require the Issuer to register as an investment company under the 1940 Act.
(p) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
Appears in 2 contracts
Sources: Equity Underwriting Agreement (Agile Therapeutics Inc), Equity Underwriting Agreement (Agile Therapeutics Inc)
Covenants. The Pledgor hereby Seller or COAF, as the case may be, covenants that during the continuance of this Agreementand agrees with each Underwriter that:
(a) it shall warrant The Seller will prepare a prospectus supplement (the “Prospectus Supplement”) setting forth the amount of Notes covered thereby and defend its title the terms thereof not otherwise specified in the Prospectus, the price at which the Notes are to be purchased by the Underwriters from the Seller, the initial public offering price at which the Notes are to be sold, the selling concessions and allowances, if any, and such other information as the Seller deems appropriate in connection with the offering of the Notes, but the Seller will not file any amendments to the Pledged CollateralRegistration Statement as in effect with respect to the Notes, or any amendments or supplements to the Prospectus, without the Representatives’ prior consent (which consent shall not be unreasonably withheld or delayed); the Seller will immediately advise the Representatives and their counsel: (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement has become or will become effective and (ii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Notes or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission or any authority administering any state securities or Blue Sky law, as soon as practicable after the Seller is advised thereof, and will use its reasonable efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued.
(b) Within the time period during which a prospectus relating to the Notes is required to be delivered under the Act, the Seller will comply with all material rights requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Notes, as contemplated by the provisions hereof and the security interest (including Prospectus. If, at any time when a Prospectus relating to the priority thereof) Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Pledgee conferred circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Seller will promptly prepare and (subject to review and consent by this Agreement the Representatives as described in and Section 5(a)) file with the Commission, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; provided, however, that the Representatives’ consent to any amendment shall not constitute a waiver of any of the conditions of Section 6.
(c) The Seller will make (or will cause the Issuer to make) generally available to the Pledged Collateralholders of the Notes (the “Noteholders”) (the sole Noteholders being the applicable clearing agency in the case of Book-Entry Notes), in each case at as soon as practicable, a statement which will satisfy the cost provisions of Section 11 (a) of the Pledgor against the claims Act and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part Rule 158 of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in Commission with respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Notes.
(d) it shall The Seller will furnish to Pledgee from time the Representatives copies of the Registration Statement (at least one copy to time statements be delivered to the Representatives will be conformed and schedules further identifying will include all documents and describing exhibits thereto or incorporated by reference therein), the Pledged Collateral Prospectus, and all amendments and supplements to such documents, in each case as Pledgee soon as available and in such quantities as the Representatives may reasonably requests, all in reasonable detail;request.
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change The Seller will assist the Underwriters in arranging for the qualification of the location Notes for sale and the determination of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor their eligibility for investment under the laws of another jurisdictionsuch jurisdictions as the Representatives may designate and will continue to assist the Underwriters in maintaining such qualifications in effect so long as required for the distribution; provided, however, that neither the Seller nor the Issuer shall be required to qualify to do business in each case from the information specified any jurisdiction where it is now not qualified or to take any action which would subject it to general or unlimited service of process in Part B any jurisdiction in which it is now not subject to service of Schedule 1;process or to file a general consent to service of process in any jurisdiction in which it is now not subject to service of process.
(f) it shall not consent If filing of the Prospectus or any portion thereof is required under Rule 424(b) of the Commission, the Seller will file the Prospectus, properly completed, and any supplement thereto, pursuant to any termination of or amendment Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Organizational Documents or other organizational documents Representatives of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andsuch timely filing.
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to So long as any of the Pledged Collateral Notes are outstanding, the Seller or COAF, as applicable, will furnish to the Underwriters, by first-class mail, as soon as practicable: (i) all documents required to be distributed to the Noteholders; and (ii) from time to time, such other information concerning the Seller, COAF or the Issuer as the Underwriters may reasonably request.
(h) The Seller and COAF will apply the net proceeds from the sale of the Notes as set forth in connection the Prospectus.
(i) On or before the final transfer of Subsequent Receivables to the Issuer and the expiration of the Pre-Funding Period, if COAF is required by the Note Insurer to obtain a letter from Ernst & Young LLP, as independent auditors for COAF, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by COAF, as a result of which they have determined, having examined in accordance with such agreed-upon procedures, that the Subsequent Receivables conform to the related requirements described in the Prospectus, COAF shall deliver a copy of such letter, addressed to the Representatives. The foregoing letter shall be at the expense of COAF.
(j) At the time of the execution and delivery of each subsequent transfer, the Subsequent Receivables will have been duly and validly assigned to the Indenture Trustee in accordance with the transaction contemplated Indenture; and when such assignment is effected, a duly and validly perfected transfer of all such Subsequent Receivables subject to no prior lien, mortgage, security interest, pledge charge or other encumbrance created by this AgreementCOAF or the Seller will have occurred. As of the related Funding Date, each of the Subsequent Receivables will meet the eligibility criteria described in the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Capital One Auto Finance Trust 2004-A), Underwriting Agreement (Capital One Auto Receivables LLC)
Covenants. The Pledgor hereby Maker covenants that during and agrees that, so long as any amount is due and owing under the continuance of this AgreementNote, it shall not:
(a) it shall warrant and defend its title Fail to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) make any payment of the Pledgee conferred principal of interest on, or other obligations in respect of, this Note, free of any claim of subordination, as and when the same shall become due and payable (whether on the Maturity Date or by this Agreement in acceleration or otherwise), for ten (10) days after the same shall be due and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeverpayable;
(b) except as Fail to observe or perform any other covenant, agreement or warranty contained in, or otherwise permitted in commit, any breach of this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted LiensNote;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company Suffer to the Pledgor and the Pledgor shall not prove nor have the right guarantor (the "Guarantor") under the guarantee (the "Guarantee") or the pledgor (the "Pledgor") under the stock pledge agreement (the "Stock Pledge Agreement") entered into contemporaneously herewith and of proofeven date herewith fail to observe or perform any covenant, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency agreement or liquidationwarranty contained therein, or analogous proceedings under otherwise commit any applicable lawbreach thereof (this Note, of the PledgorGuaranty, the Stock Pledge Agreement and all other documents delivered contemporaneously and in connection herewith collectively are referred to as the "Loan Documents");
(d) it shall furnish Commence or suffer to Pledgee from time have the Guarantor or the Pledgor commence a voluntary case under the United States Bankruptcy Code or insolvency laws as now or hereafter in effect or any successor thereto (the "Bankruptcy Code"); or suffer to time statements and schedules further identifying and describing have an involuntary case commenced against it, the Pledged Collateral Guarantor or the Pledgor under the Bankruptcy Code in which the petition is not controverted within thirty (30 days), or is not dismissed within sixty (60) days, after commencement of such involuntary case; or suffer to have a "custodian" (as Pledgee reasonably requestsdefined in the Bankruptcy Code) appointed for, or take charge of, all or any substantial part of the property of the Maker, the Guarantor or the Pledgor, or commence any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in reasonable detaileffect relating to the Maker, the Guarantor or the Pledgor, or suffer to have commenced against it, the Guarantor or the Pledgor any such proceeding which remains undismissed for a period of sixty (60) days; or be, or suffer to have the Guarantor or the Pledgor be, adjudicated insolvent or bankrupt; or suffer to have any order of relief or other order approving any such case or proceeding entered; or suffer to have any appointment of any custodian or the like for any thereof or any substantial part of its property or the property of the Guarantor or the Pledgor which continues undischarged or unstayed for a period of sixty (60) days; or make, or suffer to have the Guarantor or the Pledgor make, a general assignment for the benefit of creditors; or fail to pay, or state that it is unable to pay, its debts generally as they become due; call, or suffer to have the Guarantor or the Pledgor call, a meeting of all of its respective creditors with a view to arranging a composition or adjustment of its debts; or by any act or failure to act indicate, or suffer to have the Guarantor or the Pledgor indicate, its consent to, approval of or acquiescence in any of the foregoing; or take any corporate or other action for the purpose of effecting any of the foregoing;
(e) it shall give at least 30 days’ prior written notice Default, or suffer to Pledgee of any (i) change of have the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity Guarantor or structure or (iii) reorganization or reincorporation of the Pledgor under the laws of another jurisdictiondefault, in each case from any of its respective obligations under any mortgage, credit agreement or other facility, indenture, agreement or other instrument under which there may be issued, or by which there may be secured or evidenced any indebtedness thereof in an amount exceeding thirty-seven thousand five hundred dollars ($37,500.00), whether such indebtedness now exists or shall hereafter be created and such default shall result in such indebtedness becoming or being declared due and payable prior to the information specified in Part B of Schedule 1date on which it would otherwise become due and payable;
(f) it shall not consent Be, or suffer to have the Guarantor or the Pledgor be, a party to any termination Change of Control Transaction (as defined below), or amendment to the Organizational Documents sell or other organizational documents dispose of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights all or in excess of forty-nine (49%) percent of its respective assets (based on book value calculation as reflected in the Pledged Collateral, the validity, perfection its most recent financial statements) in one or priority more transactions (whether or not such sale would constitute a Change of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andControl Transaction);
(g) it shall indemnify Suffer to have the Pledgee fromCommon Stock to be suspended or delisted from trading for in excess of three (3) Trading Days;
(h) Suffer to have the average daily trading volume of the Common Stock, during any consecutive ten (10) trading-day period, be less than five thousand ($5,000) dollars in value;
(i) Suffer a determination by the U.S. Securities and hold it harmless against, any and all liabilities with respect toExchange Commission or Financial Industry Regulatory Authority, or resulting from any delay in payingapplicable state regulatory authority, that it, the Guarantor or the Pledgor has violated applicable Securities Laws;
(j) Fail, or suffer to have the Pledgor or the Guarantor fail, to file a Form 10-K, Form 10-Q or a Form 8-K when due; Enter, or suffer to have the Pledgor or the Guarantor enter, into a transaction or series of transactions that would violate the "Twenty Percent Rule" if the Common Stock were traded on the NASDAQ market;
(k) Suffer to have the value of the shares of Common Stock that are pledged to secure the obligations due under the Notes pursuant to the Stock Pledge Agreement (the "Collateral Shares") be equal to not more than four (4) times the Maturity Amount on any and all stamptrading day during the term of this Note; provided, excisethat for purposes of measuring compliance with this covenant, sales or other taxes which may the value of the Collateral Shares shall be payable or determined deemed to be payable with respect to any the average of the Pledged Collateral Volume-Weighted Average Price (the "VWAP") of Common Stock, as reported by B▇▇▇▇▇▇▇▇, L.P., for the previous five (5) trading days;
(l) Suffer to have an action, suit or proceeding commenced against it, the Guarantor or the Pledgor seeking damages in connection with an amount exceeding thirty-seven thousand five hundred dollars ($37,500); or
(m) Make any representation or warranty that is not true and correct in all material respects as of the transaction contemplated by date of this AgreementNote, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
Appears in 2 contracts
Sources: Promissory Note (Decor Products International, Inc.), Note Agreement (Murals by Maurice, Inc.)
Covenants. The Pledgor hereby Company covenants that during with the continuance of this AgreementUnderwriter as follows:
(a) it shall warrant Immediately following the execution of this Agreement, the Company will (x) prepare the Final Prospectus that complies with the Securities Act and defend its title the Securities Act Regulations and which sets forth the face amount of the Class B Certificates and their terms not otherwise specified in the basic prospectus relating to all offerings of pass through certificates under the Registration Statement and the face amount of the Class B Certificates that the Underwriter has agreed to purchase, the price at which the Class B Certificates are to be purchased by the Underwriter from the Trustee, any initial public offering price, any selling concession and reallowance, and such other information as you and the Company deem appropriate in connection with the offering of the Class B Certificates and (y) file all material required to be filed by the Company with the Commission pursuant to Rule 433(d) within the time required by such rule. The Company will promptly transmit copies of the Final Prospectus to the Pledged Collateral, Commission for filing pursuant to Rule 424 and all material rights and will furnish to the security interest (including the priority thereof) Underwriter as many copies of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Final Prospectus as you shall reasonably request.
(b) except During the period when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a) under the Securities Act (“Rule 173(a)”) relating to the Class B Certificates is required to be delivered under the Securities Act, the Company will promptly advise you of
(i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus or any document that would as otherwise permitted a result thereof be incorporated by reference in this Agreement the Final Prospectus, (iii) any request by the Commission for any amendment of the Registration Statement or any amendment or supplement to the Final Prospectus or for any additional information relating thereto or to any document incorporated by reference therein, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the Finance Documentsinstitution or threatening of any proceeding for that purpose, it shall not sell, assign, transfer, charge, pledge or encumber and (v) the receipt by the Company of any notification with respect to the suspension of the qualification of the Class B Certificates for sale in any manner jurisdiction or the institution or threatening of any part proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;withdrawal thereof.
(c) If, at any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Class B Certificates is required to be delivered under the Securities Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall not take from be necessary to amend or supplement the Final Prospectus to comply with the Securities Act or the Securities Act Regulations, the Company will promptly prepare and file with the Commission, subject to paragraph (d) of this Section 3, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and the Company will use its reasonable efforts to have any undertaking such amendment to the Registration Statement or security in new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect of its liability hereunder to the Class B Certificates). Neither the Underwriter’s consent to, nor the Underwriter’s delivery of, any such amendment or in respect supplement shall constitute a waiver of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, conditions set forth in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Section 4 hereof.
(d) it At any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Class B Certificates is required to be delivered under the Securities Act or the Securities Act Regulations, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish you with copies of any such amendment or supplement or other documents proposed to be filed within a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which you shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;object.
(e) it shall give at least 30 days’ prior written The Company has furnished or will furnish, if requested, to the Underwriter and its counsel, without charge, conformed copies of the Original Registration Statement and of all amendments thereto, whether filed before or after such Registration Statement originally became effective (including exhibits thereto and the documents incorporated therein by reference) and the copies of the Original Registration Statement and each amendment 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 Regulation S-T. So long as delivery of a Final Prospectus (or in lieu thereof, a notice referred to Pledgee in Rule 173(a)) by the Underwriter may be required by the Securities Act, the Company will furnish as many copies of any (i) change of Statutory Prospectus, the location of Pledgor’s chief executive officeFinal Prospectus and any amendments thereof and supplements thereto as the Underwriter may reasonably request and the Final 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 ▇▇▇▇▇, (ii) change of Pledgor’s name, identity except to the extent permitted by Regulation S-T or structure or (iii) reorganization or reincorporation of Pledgor required under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Rule 424(e).
(f) it The Company shall use its reasonable efforts, in cooperation with the Underwriter, to qualify the Class B Certificates for offering and sale under the applicable securities laws of such states in the United States as the Underwriter may reasonably designate and will maintain such qualifications in effect so long as required in connection with the distribution of the Class B Certificates; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any termination jurisdiction in which it is not so qualified or to subject itself to taxation in respect of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights doing business in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee any such jurisdiction in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andwhich it is not otherwise so subject.
(g) The Company shall use the proceeds received by it from the sale of the Class B Equipment Notes in the manner to be indicated in the Final Prospectus under “Use of Proceeds.”
(h) The Company shall indemnify cooperate with the Pledgee fromUnderwriter and use its reasonable efforts to permit the Class B Certificates to be eligible for clearance and settlement through the facilities of DTC.
(i) The Company, during the period when a Final Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)) relating to the Class B Certificates is required to be delivered, will file promptly all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
(j) The Company represents and agrees that, unless it obtains the prior consent of the Underwriter, and hold the Underwriter represents and agrees that, unless it harmless againstobtains the prior consent of the Company, it has not made and will not make any offer relating to the Class B Certificates that would constitute an “issuer free writing prospectus,” as defined in Rule 433 or that would otherwise constitute a “free writing prospectus” as defined in Rule 405. Any such free writing prospectus consented to by the Company and all liabilities the Underwriter 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 respect tothe requirements of Rule 433 as applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(k) Between the date of this Agreement and the Closing Time, the Company will not, without the Underwriter’s prior consent, offer, sell or resulting from enter into any delay in paying, agreement to sell any and all stamp, excise, sales public debt securities registered under the Securities Act (other than the Certificates) or other taxes any debt securities which may be payable or determined to be payable with respect to sold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A under the Securities Act and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act.
(l) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Original Registration Statement, any of the Pledged Collateral Class B Certificates remain unsold by the Underwriter, the Company will use its best efforts to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Class B Certificates, in a form satisfactory to the Underwriter. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, use its best efforts to file a new shelf registration statement relating to the Class B Certificates, in a form satisfactory to the Underwriter and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Class B Certificates to continue as contemplated in connection with the transaction contemplated by this Agreementexpired registration statement relating to the Class B Certificates. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
Appears in 2 contracts
Sources: Underwriting Agreement (American Airlines Inc), Underwriting Agreement
Covenants. The Pledgor hereby Company covenants that during to the continuance of this AgreementLenders as follows:
(a) it The Company shall warrant and defend its title promptly notify the Lenders’ Agent in writing in the event that a material adverse change has occurred with respect to the Pledged Collateralassets, and all material rights and the security interest (including the priority thereof) business, operations or financial condition of the Pledgee conferred by this Agreement Company, or that the prospect of payment or performance of any covenant, agreement or duty under the Loan Documents or any of the other agreements or undertakings in and connection with any of its obligations to the Pledged Collateral, Lenders is impaired in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;any material respect.
(b) except as otherwise permitted The Company shall promptly notify the Lenders’ Agent in this Agreement writing in the event of a loss, suspension, revocation or failure to renew any license or permit now held or acquired after the Finance Documentsdate hereof shall occur, it which loss, suspension, revocation or failure to renew would reasonably be expected to have a material adverse affect on the business, profits, assets or condition (financial or otherwise) of the Company.
(c) The Company shall promptly notify the Lenders’ Agent in writing if the Company is in breach of any material agreement, document or instrument, whether formerly, now or after the date hereof, existing between the Company and any other person, firm or entity, if such breach would reasonably be expected to have a material adverse affect on the business, profits, assets or condition (financial or otherwise) of the Company.
(d) The Company shall not sellmake any prepayment of any Note or agree to the amendment of any such Note, assignand no Lender shall accept any prepayment of its Note, transferor agree to any amendment of such Note, charge, pledge or encumber in any manner any part unless a proportionate prepayment is made to all of the Pledged Collateral Notes and in the case of an amendment, such amendment is approved by the Requisite Lenders.
(e) The Company shall not at any time create, incur, assume or suffer to exist any encumbrance Lien on any of its property or assets, tangible or intangible, now owned or acquired in the future, or agree to become liable to do so without the consent of the Requisite Lenders, except:
(i) Liens existing on the Pledged Collateral, other than Permitted LiensClosing Date and described in Schedule C to this Agreement;
(cii) it shall Liens arising from taxes, assessments, charges, levies or claims that are not take from yet due or that remain payable without penalty;
(iii) Deposits or pledges to secure workmen's compensation, unemployment insurance, old age benefits or other social security obligations, or in connection with or to secure the Company any undertaking performance of bids, tenders, trade contracts or security leases, or to secure statutory obligations, or stay, surety or appeal bonds, or other pledges or deposits of like nature and all in the ordinary course of business;
(iv) Mechanics', carriers', workmen's, repairmen's or similar liens arising in the ordinary course of business in respect of obligations which are not overdue, or deposits made to obtain the release of such mechanics', carriers', workmen's, repairmen's or similar liens which are being contested in good faith by appropriate proceedings and with respect to which the Company has created reserves which are determined to be adequate by the application of GAAP consistently applied; and
(v) Zoning restrictions, easements, minor restrictions on the use of real property, minor irregularities in title to real property and other minor liens that do not in the aggregate materially detract from the value of a property or asset to, or materially impair its use in the business of, the Company.
(f) The Company will not at any time create, incur, assume or suffer to exist any debt without the consent of the Requisite Lenders, except:
(i) Debt under this Agreement, the Notes, the other Loan Documents or under any other document, instrument or agreement between the Company and the Lenders;
(ii) Debt existing on the Closing Date and described in Schedule C to this Agreement; provided, however, that none of such indebtedness shall be extended, renewed or refinanced without the prior written consent of the Requisite Lenders; and
(iii) Current accounts payable, accrued expenses and other current items arising out of transactions (other than borrowings) in the ordinary course of business.
(g) The Company will not at any time directly or indirectly assume, guarantee, endorse or otherwise agree, become or remain directly or contingently liable upon or with respect to any obligation or liability hereunder or in respect of any other liability person, firm or entity.
(h) The Company shall furnish to each Holder (except to the extent waived by each Holder):
(i) Within 30 days after the end of each calendar month, an unaudited balance sheet of the Company as at the end of such month and unaudited statements of income and cash flow of the Company for such month and for the current fiscal year to the Pledgor and end of such month setting forth in comparative form the Pledgor shall not prove nor have Company’s financial statements for the right of proof, in competition with corresponding periods for the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requestsprior fiscal year, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents detail and certified by an authorized financial officer of the Company stating that could reasonably be expected to adversely affect such statements are in accordance with the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority books and records of the security interests Company, have been prepared in accordance with GAAP applied on a consistent basis (except as noted and on the accompanying notes) and fairly present the financial condition of the Pledgee in Company at the Pledged Collateraldate thereof and for the periods covered thereby, the rights subject to changes resulting from year end adjustments and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occuraccruals; and
(gii) it At least 30 days prior to the end of each fiscal year, an annual budget for the next fiscal year.
(i) The Company shall indemnify permit each Lender and any authorized representative thereof, at such Lender’s expense, to visit and inspect the Pledgee fromproperties of the Company, including its corporate and hold it harmless againstfinancial records, any to examine its records and make copies thereof and to discuss its affairs, finances and accounts with its officers, all liabilities with respect to, or resulting from any delay in paying, any at such reasonable times and upon reasonable notice. The Lenders and their representatives shall treat all stamp, excise, sales or other taxes which may be payable or determined to be payable information with respect to the Company and its business that is not in the public domain as confidential and shall not use information for any of purpose other than to monitor the Pledged Collateral or in connection with the transaction contemplated Company’s performance hereunder and shall not disclose same except as required by this Agreementcourt order.
Appears in 2 contracts
Sources: Loan Agreement (Lightning Gaming, Inc.), Loan Agreement (Lightning Gaming, Inc.)
Covenants. The Pledgor Company hereby covenants that during and agrees with the continuance of this AgreementBuyer as follows:
(a) it If the Company elects to rely upon Rule 462(b), the Company shall warrant file a Rule 462 Registration Statement with the Commission in compliance with the Rule 462(b) by 8:00 a.m. New York time, on the date of this Agreement, and defend its title the Company shall at the time of filing either pay to the Pledged Collateral, and all material rights and Commission the security interest (including filing fee for Rule 462 Registration Statement or give irrevocable instructions for the priority thereof) payment of such fee pursuant to Rule 111 under the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Securities Act.
(b) except as otherwise permitted The Company shall promptly advise the Buyer in this Agreement writing (A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (B) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus, (C) of the time and date that any post-effective amendment to the Registration Statement becomes effective and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending its use or the Finance Documentsuse of the Final Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation of the Shares from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order, the Company shall use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees that it shall not sellcomply with the provisions of Rules 424(b), assign430A and 430B, transferas applicable, charge, pledge under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or encumber Rule 433 were received in any a timely manner any part by the Commission (without reliance on Rule 424(b)(8) or 164(b) of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;Securities Act).
(c) (A) The Company will comply with all requirements imposed upon it shall not take by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability Exchange Act, as now and hereafter amended, so far as necessary to permit the sales of the Company to Securities as contemplated by the Pledgor provisions hereof, the Registration Statement and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Prospectus.
(d) it shall furnish The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause to Pledgee from time be paid (A) all expenses (including transfer taxes allocated to time the respective transferees) incurred in connection with the delivery to the Buyer, (B) all expenses and fees (including, without limitation, fees and expenses of the Company’s counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and schedules further identifying all amendments, schedules, and describing exhibits thereto), the Pledged Collateral as Pledgee reasonably requestsShares, the Prospectus, and any amendment thereof or supplement thereto, (C) the fees and expenses of any transfer agent or registrar, (D) listing fees, if any, and (E) all in reasonable detail;other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein.
(e) it shall give at least 30 days’ prior written notice The Company intends to Pledgee of any (i) change apply the net proceeds from the sale of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under Warrants to be sold by it hereunder for the laws of another jurisdiction, purposes set forth in each case from the information specified in Part B of Schedule 1;Registration Statement and the Final Prospectus.
(f) it The Company shall not consent use its best efforts to any termination of or amendment to effect and maintain the Organizational Documents or other organizational documents listing of the Company Shares on NASDAQ and to file with NASDAQ all documents and notices required by NASDAQ of companies that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights are traded on NASDAQ and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andquotations for which are reported by NASDAQ.
(g) it shall indemnify the Pledgee fromThe Company will not be or become, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any within one year of the Pledged Collateral or time of purchase, an “investment company” as defined in connection with the transaction contemplated by this Agreement.Investment Company Act
Appears in 2 contracts
Sources: Securities Purchase Agreement (OVERSTOCK.COM, Inc), Securities Purchase Agreement (OVERSTOCK.COM, Inc)
Covenants. The Pledgor hereby a. These covenants that during shall run with the continuance land, and all future conveyances of this Agreement:any lots of the Subdivision shall be subject to the conditions, covenants, obligations and restrictions set forth herein. Acceptance of a deed by any purchaser is considered an agreement to observe and abide by such covenants, conditions and restrictions for the protection of all owners within the subdivision.
b. Invalidation of any one of these covenants by judgment or court order shall in no way effect the remaining provisions, which shall remain in full force and effect.
c. These covenants and restrictions may be removed, modified, annulled, waived, changed and/or amended at any time and in any manner by a written Declaration setting forth such amendment, (a) it shall warrant and defend its title to by the Pledged Collateral, and all material rights and Developer as long as the security interest (including Developer owns any lot for resale in the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
subdivision; (b) except as otherwise permitted after the Developer has sold all lots, then by the owners of at least 75% of the lots. The written Declaration shall be recorded in this Agreement the office of the Register of Deeds for Outagamie County, Wisconsin.
d. The Developer and/or individual lot owners benefited by the Declaration may enforce these conditions, covenants and restrictions using any available legal or equitable remedies, including, by way of example only, affirmative or restrictive injunction. In the event of litigation to enforce these conditions, covenants and restrictions, the non-performing party or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to party violating any of the Pledged Collateral or conditions, covenants and restrictions shall reimburse the Developer and/or individual Owners for all out-of-pocket expenses (including actual attorneys' fees and court costs) incurred in connection successfully enforcing these conditions, covenants, and restrictions.
e. Variations in any of these covenants may be permitted by the Developer where he is reasonably satisfied that such variations will be pleasing and generally in keeping with the transaction contemplated by this Agreementcharacter of surrounding properties and will not be a detriment to the subdivision as a whole. After the Developer no longer owns any lot in the subdivision, requests for variations may be submitted to such review committee(s) as may be convened from among the property owners within the subdivision for consideration and approval or rejection.
Appears in 2 contracts
Sources: Restrictive Covenants, Restrictive Covenants
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) it The Sellers shall warrant provide to Buyer such information and defend its title assistance as is reasonably required or as Buyer may reasonably request to enable Buyer to identify those Business Employees that are required for the operation of the Purchased Business on and after the Closing Date in a manner consistent with past practice. Buyer, as soon as reasonably practicable after the date hereof, but no later than one Business Day prior to the Pledged CollateralClosing, shall provide the Sellers with a list of those Business Employees to whom it desires to offer employment (whether through Buyer or one of its Affiliates) effective as of the Closing (such list may be updated from time to time by Buyer in consultation with and with the approval of the Sellers, which approval shall not be unreasonably withheld, conditioned or delayed, until one Business Day prior to the Closing) (the Business Employees so listed, the “Offered Employees”). As of the Closing Date, the Sellers shall terminate the employment of each Offered Employee and shall cooperate with, and all material rights use their commercially reasonable efforts to assist, Buyer with Buyer’s hiring of such Offered Employees. Those Offered Employees who accept Buyer’s offer of employment and commence working for Buyer on the security interest Closing Date (or upon return to work within 14 days after the Closing Date from approved vacation or within 180 days after the Closing Date from approved leave (including disability leave)) shall hereafter be referred to as “Transferred Employees”; provided, however, that any union-represented Offered Employee who accepts Buyer's offer of employment and is on a workers' compensation leave, medical leave, sick leave or disability leave (other than such leave that is based on or related to Black Lung Liabilities) as of the priority thereofClosing Date will be deemed to be a Transferred Employee. For the avoidance of doubt, NonCoreCo and its Affiliates shall retain all Liabilities, including severance or other termination costs, if any, arising as a result of the transactions contemplated by this Agreement, relating to any Business Employees who do not become Transferred Employees.
(b) Neither Buyer nor any Designated Buyer shall assume any (i) “employee benefit plan” as defined in Section 3(3) of ERISA or (i) other compensatory or health or welfare benefit plan or agreement, in each case, that is sponsored, maintained or contributed to by any Seller or any Seller Subsidiary for the Pledgee conferred by this Agreement benefit of any Business Employee.
(c) (i) Sellers shall use their commercially reasonable efforts to assist Buyer in identifying and establishing, those employee benefit plans and administrative arrangements that are required or appropriate for the operation of the Purchased Business on and after the Closing Date in a manner consistent with past practice. Buyer and Sellers shall cooperate and shall take all reasonable actions as are necessary or appropriate to cause Buyer or a Designated Buyer to adopt or otherwise become the sponsor of, and to maintain, such plans (the Pledged Collateral“Buyer Plans”) and to provide that the Transferred Employees shall be entitled to participate in such plans from and after the Closing Date. Buyer, as soon as reasonably practicable after the date hereof, but no later than one Business Day prior to the Closing, shall provide Sellers with the name of the entity, such entity’s employer identification number, and any other related information requested by Buyer, that will sponsor each Buyer Plan.
(i) Buyer will cause the Buyer Plans to take into account for purposes of eligibility and vesting thereunder, but not with respect to accrual of benefits other than in the case of severance and vacation, service by the Transferred Employees with the Sellers prior to the Closing as if such service were with Buyer to the same extent such service was credited under a comparable benefit plan of the Sellers prior to the Closing (except to the extent it would result in the duplication of benefits), in each case at to the cost extent permitted under Applicable Law and the terms of the Pledgor against applicable Buyer Plan. In addition, with respect to each Buyer Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), Buyer shall, or shall cause an Affiliate of Buyer sponsoring or maintaining such Buyer Plan, to (A) cause there to be waived any pre-existing condition exclusions, actively at work requirements, insurability requirements or other eligibility limitations, and (A) give effect, in determining any deductible, co-insurance and maximum out‑of‑pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, the claims Transferred Employees and demands their dependents under an Employee Plan prior to the Closing, in each case to the extent permitted under Applicable Law and the terms of all persons whomsoever;the applicable Buyer Plan.
(bii) except as otherwise Following the Closing Date, to the extent permitted in this Agreement by applicable policies of Buyer (including any caps or limits on accrued and unused paid time off thereunder), Buyer will allow Transferred Employees to use all accrued and unused paid time off to which such Transferred Employee is entitled under the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part applicable policies of the Pledged Collateral or suffer Sellers immediately prior to exist any encumbrance the Closing Date to the extent reflected on the Pledged Collateral, other than Permitted Liens;
(c) it Financial Statements. The Sellers shall not take from the Company any undertaking or security in respect provide Buyer with a record of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, such accrued paid time off for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;each Transferred Employee.
(d) it With respect to Transferred Employees, Buyer and the Sellers shall furnish to Pledgee from time to time statements and schedules further identifying and describing use the Pledged Collateral as Pledgee reasonably requestsalternative procedure set forth in Revenue Procedure 2004‑53, all in reasonable detail;2004-34 I.R.B. 320, for purposes of employment tax reporting.
(e) it The Sellers shall give at least 30 days’ prior written notice to Pledgee be solely responsible for all grievances, arbitrations, claims, demands, or charges of any (i) change nature whatsoever including, any such grievances, arbitrations, claims, demands, or charges whether now known or not yet made by any employees, bargaining agents, or governmental agencies, which result from or arise out of any event occurring prior to the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Closing Date.
(f) it Except as otherwise provided in Section 2.03(d)(ii), the Sellers shall not consent to be responsible for all Workers’ Compensation Liabilities arising out of any termination of occupational injury or amendment injurious exposure occurring on or prior to the Organizational Documents Closing and Buyer shall be responsible for all Workers’ Compensation Liabilities arising out of any occupational injury to, or other organizational documents injurious exposure of, any Transferred Employee occurring following the Closing. Buyer, the applicable Sellers and ReorgCo shall enter into the Workers Compensation and Black Lung Benefits Administration Agreement to provide for the administration of certain benefit obligations related to Workers Compensation Liabilities, including but not limited to Black Lung Liabilities, and in each case for billing and reimbursement between Sellers and Buyer and/or the relevant Designated Buyers, as the case may be. For the avoidance of doubt, nothing in this Section 9.02(f) or the Workers Compensation and Black Lung Benefits Administration Agreement shall modify, limit or otherwise alter the obligations of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority parties under Section 5.12 of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andAgreement.
(g) it Effective as of the Closing Date or any subsequent date reasonably requested by Buyer (but not later than sixty (60) days following the Closing Date), Transferred Employees shall indemnify be eligible to effect a “direct rollover” (as described in Section 401(a)(31) of the Pledgee fromCode) of their account balances (including participant loans) under the Alpha Natural Resources 401(k) Plan to one or more defined contribution plans maintained by Buyer or its Affiliates (collectively, the “Buyer 401(k) Plan”) in the form of cash and participant loan notes. Sellers and Buyer shall take all actions necessary to permit such direct rollovers as soon as practicable after the Closing Date, including Buyer providing evidence to Sellers reasonably satisfactory to Sellers of the qualified status of the Buyer 401(k) Plan and of the ability of the Buyer 401(k) Plan to accept direct rollovers, and hold it harmless againstto ensure that no outstanding participant loans default prior to the 60th day following the Closing Date, including, without limitation, amending the Buyer 401(k) Plan to allow for direct rollovers and continued payment of outstanding participant loans.
(h) Nothing in this Section 9.02 is intended to require Buyer to continue employment for any and all liabilities with respect to, period of time or resulting from on any delay specific terms or conditions of any Transferred Employee after the Closing. Nothing contained in paying, this Agreement shall be construed as an amendment or modification of any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any employee benefit plan of the Pledged Collateral Sellers or Buyer or any Designated Buyer or as an obligation to effect the transfers described in connection with the transaction contemplated by this AgreementSection 9.02(g).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Contura Energy, Inc.), Asset Purchase Agreement (Contura Energy, Inc.)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this AgreementPlacement Agent as follows:
(a) it shall warrant To prepare the Prospectus in a form approved by the Placement Agent and defend its title to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Pledged CollateralRegistration Statement or to the Prospectus prior to the last delivery date except as permitted herein; to advise the Placement Agent, and all material rights and the security interest (including the priority promptly after it receives notice thereof) , of the Pledgee conferred by this Agreement in time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Pledged CollateralPlacement Agent with copies thereof; to advise the Placement Agent, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in each case at the cost event of the Pledgor against issuance of any stop order or of any order preventing or suspending the claims and demands use of all persons whomsoeverany Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part To furnish promptly to each of the Pledged Collateral or suffer Placement Agent and to exist any encumbrance on counsel to the Pledged CollateralPlacement Agent a signed copy of the Registration Statement as originally filed with the Commission, other than Permitted Liensand each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Placement Agent such number of the following documents as the Placement Agent shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall not take from be necessary to amend or supplement the Company any undertaking or security Prospectus in respect of its liability hereunder or in respect of any other liability of order to comply with the Company Securities Act, to notify the Placement Agent and, upon their request, to prepare and furnish without charge to the Pledgor Agent and to any dealer in securities as many copies as the Pledgor shall not prove nor have the right Agent may from time to time reasonably request of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency an amended or liquidation, supplemented Prospectus that will correct such statement or analogous proceedings under any applicable law, of the Pledgoromission or effect such compliance;
(d) it shall furnish To file promptly with the Commission any amendment to Pledgee from time the Registration Statement or the Prospectus or any supplement to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requestsProspectus that may, all in reasonable detailthe judgment of the Company or the Agent, be required by the Securities Act or requested by the Commission;
(e) it shall give at least 30 days’ prior written notice Prior to Pledgee of filing with the Commission any (iamendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424(b) change of the location Rules and Regulations, to furnish a copy thereof to the Agent and counsel to the Placement Agent and obtain the consent of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from Placement Agent to the information specified in Part B of Schedule 1filing;
(f) it shall not consent As soon as practicable after the Effective Date, to any termination of or amendment make generally available to the Organizational Documents or other organizational documents Company’s security holders and to deliver to the Agent an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) Promptly from time to time to take such action as the Agent may reasonably request to qualify the Stock for offering and sale under the securities laws of such jurisdictions as the Agent may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided that could in connection therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(h) To apply the net proceeds from the sale of the Securities being sold by the Company as set forth in the Prospectus;
(i) The Company will comply with all the undertakings contained in the Registration Statement.
(j) Prior to the sale of the Securities to the Investors, the Company will cooperate with the Placement Agent and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Placement Agent may request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(k) During a period of five years commencing with the date hereof, the Company will furnish, upon the written request of the Placement Agent, copies of all periodic and special reports furnished to the stockholders of the Company and all reports filed with the Commission, the NASD, the NASDAQ or any securities exchange.
(l) Prior to the Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Securities without the prior written consent of the Placement Agent unless in the judgment of the Company and its counsel, and after reasonable notification to the Placement Agent, such press release or communication is required by law.
(m) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause to be paid all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Placement Agent and to the Investors (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Securities including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Securities to the Investors, (iii) the producing, word processing and/or printing of this Agreement, the Purchase Agreements, any dealer agreements, and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Placement Agent (including costs of mailing and shipment), (iv) the qualification of the Securities for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Placement Agent in connection therewith) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Placement Agent, (v) any listing of the Securities on any securities exchange or qualification of the Securities for quotation on the NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the offering of the Securities by the NASD, including the reasonable legal fees and filing fees and other disbursements of counsel to the Placement Agent in connection therewith, (vii) the fees and disbursements of any transfer agent or registrar for the Securities, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Securities to prospective investors and the Placement Agent’s sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the fees of the Escrow Agent, and (x) all other costs and expenses incident to the performance of the Company’s obligations hereunder that are not otherwise specifically provided for herein. If the sale of the Securities provided for herein is not consummated by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Placement Agent’s obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the Placement Agent for all out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Placement Agent in connection with its investigation, preparing to market and marketing the Securities or in contemplation of performing their obligations hereunder.
(n) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder for the purposes set forth in the Prospectus and will file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 of the Rules and Regulations.
(o) The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to adversely affect the Pledged Collateralcause or result in, or which has constituted, the Pledgor’s rights stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and has not effected any sales of capital stock that are required to be disclosed under the Securities Act that have not been so disclosed in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andRegistration Statement.
(gp) it shall indemnify During the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may period when the Prospectus would be payable or determined required by law to be payable with respect to any of the Pledged Collateral or delivered in connection with the transaction sale of the Securities by an underwriter or dealer in connection with the offering contemplated by this Agreement, the Company will file all reports and any other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations promulgated thereunder.
(q) The Company agrees to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Securities.
(r) The Company and its subsidiaries will maintain such controls and other procedures, including without limitation those required by Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to the Company, including its subsidiaries, is made known to them by others within those entities.
(s) The Company and its subsidiaries will comply with all effective applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(t) The Company agrees to furnish to the Placement Agent as early as practicable prior to the Closing Date, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly financial statements, if any, of the Company which have been read by the Company’s independent certified public accountants, as stated in their letter to be furnished pursuant to Section 4(h) hereof.
Appears in 2 contracts
Sources: Placement Agency Agreement (First Responder Systems & Technology Inc.), Placement Agency Agreement (First Responder Systems & Technology Inc.)
Covenants. The Pledgor hereby Company covenants and agrees that during the continuance of this Agreementit will:
(a) it shall warrant Use its best efforts to cause the Registration Statement to become effective and defend its title to will notify the Pledged CollateralAgent immediately, and all material rights confirm the notice in writing, (i) when the Registration Statement and the security interest any post-effective amendment thereto becomes effective, (including the priority thereofii) of the Pledgee conferred issuance by this Agreement in the Commission of any stop order or of the initiation, or the threatening, of any proceedings for that purpose and (iii) of the receipt of any comments from the Commission. The Company will make every reasonable effort to prevent the Pledged Collateralissuance of a stop order, in each case and, if the Commission shall enter a stop order at any time, the Company will make every reasonable effort to obtain the lifting of such order at the cost of the Pledgor against the claims and demands of all persons whomsoever;earliest possible moment.
(b) except During the time when a prospectus is required to be delivered under the Securities Act, comply so far as otherwise permitted it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules, as from time to time in this Agreement force, so far as necessary to permit the continuance of sales of or dealings in the Shares. If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Company or counsel for the Agent, the Registration Statement or Prospectus as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act or the Finance DocumentsRules, it the Company will notify the Agent promptly and prepare and file with the Commission an appropriate amendment or supplement in form satisfactory to the Agent. The cost of preparing, filing and delivering copies of such amendment or supplement shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of be paid by the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;Company.
(c) it Deliver to the Agent, from time to time as requested, such number of copies of each Preliminary Prospectus as may reasonably be requested by them and, as soon as the Registration Statement, or any amendment or supplement thereto, becomes effective, deliver to the Agent three signed copies of the Registration Statement, including exhibits, and all post-effective amendments thereto and deliver to the Agent such number of copies of the Prospectus, the Registration Statement and supplements and amendments thereto, if any, without exhibits, as they may reasonably request.
(d) Endeavor in good faith, in cooperation with the Agent and its counsel, at or prior to the time the Registration Statement becomes effective, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of the states listed in Exhibit A. In each jurisdiction where such qualification shall be effected, the Company will, unless the Agent agrees that such action is not take at the time necessary or advisable, file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction. The Company will advise the Agent promptly of the suspension of the qualification of the Shares for offering, sale or trading in any jurisdiction, or any initiation or threat of any proceeding for such purpose, and in the event of the issuance of any order suspending such qualification, the Company, with the cooperation of the Agent, will use all reasonable efforts to obtain the withdrawal thereof.
(e) Furnish its security holders as soon as practicable an earnings statement (which need not be certified by independent certified public accountants unless required by the Securities Act or the Rules) covering a period of at least twelve months beginning after the effective date of the Registration Statement, which shall satisfy the provisions of Section 11(a) of the Securities Act and the Rules thereunder.
(f) For a period of five years from the Effective Date, furnish to its shareholders annual audited and quarterly unaudited consolidated financial statements with respect to the Company any undertaking including balance sheets and income statements.
(g) For a period of five years from the Effective Date, furnish to the Agent the following:
(i) at the time they have been sent to shareholders of the Company or security filed with the Commission, one copy of each annual, quarterly, interim, or current financial and other report or communication;
(ii) as soon as practicable, one copy of every press release and every material news item and article in respect of the Company or its liability hereunder affairs which was released by the Company; and
(iii) all other information reasonably requested by the Agent with respect to the Company to comply with Rule 15c2-11 of the Rules and Section 4 of Schedule H of the NASD By-Laws.
(h) In all material respects, apply the net proceeds from the Offering in the manner set forth under "Use of Proceeds" in the Prospectus.
(i) Not file any amendment or supplement to the Registration Statement or Prospectus after the effective date of the Registration Statement to which the Agent shall reasonably object in writing after being furnished a copy thereof.
(j) Comply with all registration, filing and reporting requirements of the Securities Act or the Exchange Act, which may from time to time be applicable to the Company.
(k) Take no actions that reasonably could prevent its Shares from being listed on the OTC Bulletin Board for not fewer than five years.
(l) Pay, or reimburse if paid by the Agent, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including those relating to (i) the preparation, printing, filing and delivery of the Registration Statement, including all exhibits thereto, each preliminary prospectus, the Prospectus, all amendments of and supplements to the Registration Statement and the Prospectus, and the printing of this Agreement and related agreements including, without limitation, the Dealer Agreement; (ii) the issuance of the Shares and the preparation and delivery of certificates for the Shares to the Agent; (iii) the registration or qualification of the Shares for offer and sale under the securities or "blue sky" laws of the various jurisdictions referred to in Exhibit A, including the fees and disbursements of counsel in connection with such registration and qualification and the preparation and printing of preliminary, supplemental, and final blue sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Agent of copies of each Preliminary Prospectus, the Prospectus and all amendments of or supplements to the Prospectus, and of the several documents required by this Section to be so furnished; (v) the filing requirements and fees of the NASD in connection with its review of the terms of the public offering and the underwriting; (vi) the furnishing (including costs of shipping and mailing) of copies of all reports and information required by Section 4(g); (vii) all transfer taxes, if any, with respect to the sale and delivery of any other liability of the Shares by the Company to the Pledgor Agent, (viii) the inclusion of the Shares for listing on the OTC Bulletin Board; and (ix) the Pledgor shall not prove nor have Agent's out-of-pocket expenses, including without limitation, road show expenses and legal fees of counsel to the right Agent.
(m) Not, without the prior written consent of proofthe Agent, in competition sell, contract to sell or grant any option for the sale of or otherwise dispose of, directly or indirectly, or register with the PledgeeCommission, any shares of Common Stock of the Company (or any securities convertible into or exercisable for any monies whatsoever owing from such shares of Common Stock) within 150 days after the date of the Prospectus, except as provided in this Agreement and except for grants and exercises of stock options under the stock option plans as described in the Prospectus.
(n) For not less than three fiscal years after the Effective Date, maintain the Exchange Act registration of the Common Stock, unless the Company's shareholders direct the Company to deregister the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementCommon Stock.
Appears in 2 contracts
Sources: Agency Agreement (First Shares Bancorp Inc), Agency Agreement (First Shares Bancorp Inc)
Covenants. The Pledgor hereby covenants that during the continuance of For so long as this AgreementNote remains outstanding or any amount remains unpaid on this Note:
(a) it OneBeacon shall warrant use commercially reasonable efforts to obtain the approval of the Commissioner in accordance with Section 322.2 of the Insurance Law for the payment by OneBeacon of interest on and defend its title principal of this Note on the scheduled payment dates, prepayment date or maturity dates thereof, and, in the event any such approval has not been obtained for any such payment or prepayment at or prior to the Pledged Collateralscheduled payment date, prepayment date or maturity date, as the case may be, to continue to use best efforts to obtain such approval promptly thereafter. Not less than 45 days prior to the scheduled payment date, prepayment date or maturity date (excluding any such maturity date which arises as a result of the obtaining of an order or the granting of approval for the rehabilitation, liquidation, conservation or dissolution of OneBeacon), OneBeacon will seek the approval of the Commissioner to make each payment or prepayment of interest on and principal of this Note. In addition, OneBeacon shall notify in writing the holder of this Note no later than five Business Days prior to the scheduled payment date for interest, date for the prepayment of principal or the maturity date for principal in the event that the Commissioner has not then approved the making of any such payment on such scheduled payment date, prepayment date or such maturity date, and all material rights and thereafter, if such payment or prepayment has been approved by the security interest (including Commissioner, shall promptly notify in writing the priority thereof) holder of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost Note of the Pledgor against the claims and demands of all persons whomsoever;such approval.
(b) except Until the full principal amount of this Note and any interest incurred thereon has been paid to the holder hereof, OneBeacon shall not, without the prior written consent of the holder of this Note:
(i) make any dividend or distribution to holders of its equity interests or purchase or retire any of its equity interests, unless, concurrently with such dividend or distribution payment, the principal amount of this Note shall be prepaid by an amount equal to the amount of such dividend or distribution payment;
(ii) create, assume, incur or have outstanding any indebtedness (including purchase money indebtedness), or become liable, whether as otherwise permitted in this Agreement endorser, guarantor, surety or the Finance Documentsotherwise, it shall not sellfor any debt or obligation of any other person;
(iii) cease operations, assignliquidate, merge, transfer, chargeacquire or consolidate with any entity, pledge or encumber in any manner any part dissolve or transfer or sell assets outside of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liensordinary course of business;
(civ) it shall not take from the Company amend its charter or bylaws in a manner that would adversely affect its corporate existence, material rights (charter and statutory) or material franchises; or
(v) write, assume or acquire any undertaking new business (including through any reinsurance or security in respect of its liability hereunder or in respect of any under existing treaties) other liability of the Company than pursuant to the Pledgor fronting requirements set forth in Section 5.23 of that certain Stock Purchase Agreement between OneBeacon Insurance Group LLC, Trebuchet US Holdings, Inc. and the Pledgor shall not prove nor have the right of proofother parties thereto, in competition with the Pledgeedated October 17, for any monies whatsoever owing from the Company to the Pledgor2012, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee as amended from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementtime.
Appears in 2 contracts
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD), Stock Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) it shall warrant and defend its title Prior to the Pledged Collateraltermination of this Agreement in accordance with Section 8 below (the “Termination Date”), the Holder will not, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred will cause its affiliates not to, withdraw or revoke any tender contemplated by this Agreement in and to the Pledged Collateral, in each case at the cost unless (i) one or more of the Pledgor against conditions set forth in Section 2 hereof is not satisfied, (ii) the claims Exchange and demands of all persons whomsoever;Tender Offer is terminated before its expiration or modified in a way inconsistent with the Term Sheet that will materially adversely affect the Holder without the Holder’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, or (iii) this Agreement is terminated in accordance with its terms.
(b) except as otherwise permitted in Prior to the Termination Date and subject to the terms and conditions of this Agreement Agreement, the Holder agrees not to, and will cause its affiliates not to, take, or cause to be taken, directly or indirectly, any action inconsistent with the Finance Documentsconsummation of, or any action opposing, the Exchange and Tender Offer.
(c) Prior to the Termination Date, the Holder agrees that, without the Company’s prior written consent, it shall will not, and will cause its controlled affiliates not to (i) except for ordinary course liens on Notes by the Holder’s prime broker, which liens will be released on or prior to the consummation of the exchange by the Holder of the Holder’s Notes, pledge, grant a security interest or otherwise encumber the Notes, or (ii) directly or indirectly, sell, assign, transfergrant an option with respect to, charge, pledge transfer or encumber in otherwise dispose of any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged CollateralHolder’s Notes, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder whole or in respect part, unless the transferee of any other liability such Notes agrees to be bound by the terms of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;this Agreement.
(d) The Company and the Holder agree that the Company shall not, without the prior written consent of the Holder, disclose the name of the Holder or amount of the Holder’s Notes held by the Holder (or its affiliates) or that the Holder has entered into this Agreement in any public manner, including in the Exchange and Tender Offer or any related press release; provided, however, that (i) the Company may disclose such name or amount to the extent that it is required to do so by the Securities and Exchange Commission, the Nasdaq National Market or The Financial Industry Regulatory Authority, but shall furnish request confidential treatment and (ii) the Company may disclose the aggregate percentage or aggregate principal amount of Notes held by Holders who have signed support agreements with the Company agreeing to Pledgee from time to time statements exchange or tender their Notes in the Exchange and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;Tender Offer (without naming such Holders).
(e) it shall give at least 30 days’ prior written notice The Company agrees to Pledgee of any commence the Exchange and Tender Offer and the Rights Offering as soon as practicable and to provide the Holder with a draft Indenture (ithe “Indenture”) change governing the New Notes, Exchange and Tender Offer and Rights Offering and such other documents relating thereto as the Holder may reasonably request in advance of the location commencement. The Company agrees that the Indenture shall be consistent with the Term Sheet and contain other customary terms for publicly traded senior secured second liens notes and the Exchange and Tender Offer and Rights Offering will be consistent with the Term Sheet and contain such other terms and conditions as are customary. Until the commencement of Pledgor’s chief executive officethe Exchange and Tender Offer (or the termination hereof), (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, Holder agrees to treat as confidential any information in each case from the information specified in Part B of Schedule 1;such drafts which is not public information.
(f) it shall not consent The Company agrees to any termination of or amendment allow the Holder to withdraw such Holder’s tender in the Organizational Documents or other organizational documents of Exchange and Tender Offer (if such Holder so chooses) if the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights changes any term or condition from those in the Pledged Collateral, the validity, perfection Term Sheet or priority of the security interests of the Pledgee in the Pledged CollateralExchange and Tender Offer or Rights Offering reviewed by the Holder that materially adversely affects the Holder without the Holder’s prior written consent, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined such consent not to be payable with respect to any of the Pledged Collateral unreasonably withheld, conditioned or in connection with the transaction contemplated by this Agreementdelayed, as more fully set forth herein.
Appears in 2 contracts
Sources: Support Agreement (Hutchinson Technology Inc), Support Agreement (Hutchinson Technology Inc)
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementand agrees with each Underwriter that:
(a) it The Company shall warrant use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and defend its title Regulations is utilized, to comply with the provisions of, and make all requisite filings with the Commission pursuant to, Rule 430A of the Rules and Regulations and to notify you promptly (in writing, if requested) of all such filings. The Company shall notify you promptly of any request by the Commission for any amendment of or supplement to the Pledged CollateralRegistration Statement or the Effective Prospectus or the Final Prospectus or for additional information; the Company shall prepare and file with the Commission, and all material rights promptly upon your request, any amendments of or supplements to the Registration Statement or the Effective Prospectus or the Final Prospectus that, in your opinion, may be necessary or advisable in connection with the distribution of the Shares; and the security interest (including Company shall not file any amendment of or supplement to the priority Registration Statement or the Effective Prospectus or the Final Prospectus that is not approved by you after reasonable notice thereof) , such approval not to be unreasonably withheld or delayed. The Company shall advise you promptly of the Pledgee conferred issuance by this Agreement in and to the Pledged Collateral, in each case at Commission or any state or other regulatory body of any stop order or other order suspending the cost effectiveness of the Pledgor against Registration Statement, suspending or preventing the claims use of any Pre-Effective Prospectus or the Effective Prospectus or Final Prospectus or suspending the qualification of the Shares for offering or sale in any jurisdiction, or of the institution of any proceedings for any such purpose; and demands the Company shall use its best efforts to prevent the issuance of all persons whomsoever;any stop order or other such order and, should a stop order or other such order be issued, to obtain as soon as possible the lifting thereof.
(b) except as otherwise permitted in this Agreement or The Company shall furnish to the Finance DocumentsUnderwriters, it shall not sell, assign, transfer, from time to time and without charge, pledge or encumber in any manner any part a reasonable number of copies of the Pledged Collateral or suffer Registration Statement of which one for the Representative and one for counsel to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;Underwriters shall be signed and shall include exhibits and all amendments and supplements to such Registration Statement.
(c) it shall not take from The Company will furnish the Underwriters with as many copies of any Pre-Effective Prospectus as the Representative may reasonably request, and, during the period when delivery of a prospectus is required under the Securities Act, the Company will furnish the Underwriters with as many copies of the Final Prospectus as the Representative may, from time to time, reasonably request. If during such period any undertaking event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances then existing, not misleading, or, if during such period it is necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Securities Act, the Company shall promptly notify you and shall amend the Registration Statement or supplement the Final Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company shall take or cause to be taken all necessary action and furnish to whomever you may direct such information as may be required in qualifying the Shares for sale under the laws of such jurisdictions that you shall designate and to continue such qualifications in effect for as long as may be necessary for the distribution of the Shares; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation, or to execute a general consent for service of process. The Company will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Shares.
(e) The Company shall make generally available to its security holders, in respect the manner contemplated by Rule 158(b) under the Securities Act, as soon as practicable but in any event not later than 45 days after the end of its liability hereunder fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earnings statement satisfying the requirements of Section 11(a) of the Securities Act covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement and will advise you in writing when such statement has been so made available.
(f) For a period of one year following the First Closing Date, the Company will not, without your prior written consent, (i) purchase any shares of Common Stock or equity securities of the Company or (ii) offer, issue, sell, transfer or otherwise dispose of, for value or otherwise, directly or indirectly, any shares of Common Stock or other equity securities of the Company, except (A) the Shares and the Representative's Warrant, (B) pursuant to the exercise of options or warrants of the Company outstanding immediately prior to the First Closing Date, as described in respect the Effective Prospectus and the Final Prospectus, (C) up to 235,000 shares of Common Stock issued upon the grant of options pursuant to the Company's existing employee benefit plans, as described in the Effective Prospectus and the Final Prospectus, (D) up to 150,000 shares of Common Stock issued upon the grant of options pursuant to the Company's 1996 Director Incentive Plan, (E) issuances and sales in transactions not involving a public offering, or (F) in connection with a merger of another corporation into, or an acquisition of all or substantially all of the assets or stock of another entity by, the Company where the Company or a subsidiary is the surviving entity.
(g) The Company shall apply the net proceeds of the sale of the Shares as set forth under the caption "Use of Proceeds" in the Final Prospectus.
(h) The Company shall pay or cause to be paid (A) all expenses (including stock transfer taxes) incurred in connection with the delivery to the several Underwriters of the Shares, (B) all fees and expenses (including, without limitation, fees and expenses of the Company's accountants and counsel) in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), each Pre-Effective Prospectus, the Effective Prospectus and the Final Prospectus as amended or supplemented and the printing, delivery and shipping of this Agreement and other underwriting documents, including Underwriters' Questionnaires, Underwriters' Powers of Attorney, Blue Sky Memoranda, Agreements Among Underwriters and Selected Dealer Agreements and any letters transmitting the offering material to Underwriters or selling group members (including costs of mailing and shipment), (C) all filing fees and reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the qualification of the Shares under state securities laws as provided in Section 5(d) hereof, (D) the filing fee of the NASD, (E) any applicable listing fees, including the fee for listing the Shares on the Nasdaq National Market, (F) the cost of printing certificates representing the Shares, (G) the cost and charges of any transfer agent or registrar, (H) the costs of preparing, printing and distributing bound volumes for the Representative and its counsel, and (I) all other liability costs and expenses incident to the performance of its obligations hereunder that are not otherwise provided for in this section (collectively, the amounts described in clauses (A) through (I), inclusive, being the "Company Expenses"). In addition, the Company will also pay to you, individually and not in your capacity as Representative, a nonaccountable expense allowance equal to 2% of the initial public offering price of the Shares (including Option Shares). If the sale of the Shares provided for herein is not consummated by reason of acts of the Company pursuant to
Section 9(a) hereof which prevent this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Pledgor Underwriters' obligations hereunder is not fulfilled, the Company shall (i) pay the several Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of counsel) incurred by the Pledgor shall not prove nor have the right of proof, Underwriters in competition connection with the Pledgeeinvestigation, preparation to market and marketing of the Shares or in contemplation of performing their obligations hereunder, (ii) pay all blue sky filing fees and expenses, including reasonable blue sky legal fees, and (iii) pay all expenses incurred by the Company, including printing expenses and accounting and legal fees. If this Agreement is terminated for any monies whatsoever owing from of the events specified in clauses (iii) through (v), inclusive, of Section 9(b), or if the sale of the Shares provided for herein is not consummated for any reason other than a reason described in the immediately preceding sentence, the Company shall pay (or reimburse to the several Underwriters) the Company Expenses. You acknowledge that $20,000 has already been paid to you by the Company to be applied against such nonaccountable expense allowance or such expenses if the Pledgorsale of Shares is not consummated as provided in the preceding sentences, as the case may be. You agree that any portion of such $20,000 that is not necessary to pay the Underwriters for their reasonable out-of-pocket expenses actually incurred if the sale of Shares is not consummated for any reason shall be returned to the Company. You also acknowledge that [$__________] has already been paid to you by the Company to be applied against expenses incurred and submitted to the Company for reimbursement in a written statement. Such $__________ in accountable expenses shall also be applied against such nonaccountable expense allowance or such expenses payable to you if the sale of Shares is not consummated as provided in the preceding sentences, as the case may be. The Company shall not in any insolvency or liquidation, or analogous proceedings under event be liable to any applicable law, of the Pledgor;Underwriters for loss of anticipated profits or other consequential damages or otherwise (except solely as described in Section 7 hereof) from the transactions covered by this Agreement.
(di) it shall The Company, at its expense, will furnish to Pledgee from time to time its shareholders an annual report (including financial statements and schedules further identifying and describing prepared in accordance with generally accepted accounting principles audited by independent certified public accountants), and, as soon as practicable after the Pledged Collateral as Pledgee reasonably requestsend of each of the first three quarters of each fiscal year, a statement of operations of the Company for such quarter (which may be in summary form), all in reasonable detail;
(e) it shall give , and, during the five-year period after the date hereof, at least 30 days’ prior written notice to Pledgee its expense, will furnish you, with copies for each of any the several Underwriters, (i) change as soon as practicable after the end of each fiscal year, a balance sheet of the location Company and any subsidiaries as at the end of Pledgor’s chief executive officesuch fiscal year, together with statements of income or operations, shareholders' equity and changes in financial position of the Company and any consolidated subsidiaries, and of any nonconsolidated significant subsidiary, for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent certified public accountants; (ii) change as soon as they are available, a copy of Pledgor’s name, identity all reports (financial or structure or other) mailed to security holders; (iii) reorganization as soon as they are available, a copy of all periodic reports and financial statements furnished to or reincorporation filed with the Commission; and (iv) such other information as you may from time to time reasonably request. In addition, during such five-year period, upon your request the Company will furnish you with copies for each of Pledgor under the laws of another jurisdictionseveral Underwriters, every material press release and every material news item or article in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents respect of the Company or its affairs that could reasonably be expected to adversely affect is released or prepared by the Pledged CollateralCompany.
(j) If and so long as the Company has any subsidiaries, the Pledgor’s rights financial statements provided for in this Section 5(j) will be on a consolidated basis to the extent the accounts of the Company and such subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for any subsidiaries whose accounts are not consolidated, but which at the time are significant subsidiaries as defined in the Pledged CollateralRules and Regulations.
(k) At or before the First Closing Date, the validity, perfection or priority you shall receive from each of the security interests Company's current officers and directors, certain warrant holders of the Pledgee Company and the Selling Shareholders, a written agreement (the "Lock-up Agreement") not to offer, sell, transfer, assign or otherwise dispose of, directly or indirectly, any shares of Common Stock or other equity securities of the Company (except the sale of the Option Shares as contemplated hereby, shares currently registered on outstanding S-3 Registration Statements, and, in the Pledged Collateralcase of certain Selling Shareholders, currently obligated to be registered on an S-3 Registration Statement in April 1997) now owned or hereafter acquired by such person for a period of one year from the rights and remedies date of the Pledgee under this Agreement or any other Finance Document or their ability Final Prospectus, without first (i) obtaining your prior written consent and (ii) granting you the right, if you so elect, to exercise act as the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable sole broker/dealer with respect to any such offer, sale, transfer or other disposition of such securities pursuant to Rule 144 of the Pledged Collateral Rules and Regulations.
(l) The Company shall continue to maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization; (ii) transactions are recorded as necessary in connection order to permit preparation of financial statements in accordance with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the transaction recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(m) The Company shall comply with all registration, filing and reporting requirements of the Exchange Act that may from time to time be applicable to the Company.
(n) The Company shall make all filings required to maintain the designation of the Common Stock on the Nasdaq National Market system.
(o) Prior to the First Closing Date, without the Representative's approval, the Company shall not publish or otherwise disseminate any news release, advertisement or comparable announcement relating to the Shares or the offering of the Shares contemplated hereby.
(p) If any time during the 25-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of and, if deemed appropriate by this Agreementthe Company and its counsel in consultation with you and your counsel, disseminate a press release or other public statement reasonably satisfactory to you responding to or commenting on such rumor, publication or event.
(q) During the one-year period following the First Closing Date, the Company shall give notice to the Representative of meetings of the Company's Board of Directors and, if requested by the Representative, shall permit a designee of the Representative to attend such meetings as an observer. Such notice to the Representative shall be made in the same manner and at the same time as notice of such meeting given to the d
Appears in 2 contracts
Sources: Underwriting Agreement (Unicomp Inc), Underwriting Agreement (Unicomp Inc)
Covenants. (a) The Pledgor hereby Servicer covenants that during as to the continuance of this AgreementAssets:
(ai) it The Servicer shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) not release or assign any Lien in favor of the Pledgee conferred by this Agreement Trustee on any Receivables or the Related Security related to any Contract in and to the Pledged Collateralwhole or in part, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder herein or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Indenture.
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under The Servicer will in all material respects duly fulfill all obligations on the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined Servicer's part to be payable with respect to any of the Pledged Collateral fulfilled under or in connection with the transaction Assets. The Servicer will not amend, rescind, cancel or modify any Contract or term or provision thereof, except as permitted herein or in the Indenture or in connection with an Upgrade, and the Servicer will not do anything that would impair the rights of the Noteholders in the Assets, except as contemplated herein or in the Indenture; provided that, without limiting the foregoing, the Servicer may once per Contract, over the lifetime of such Loan Document allow the Obligor of such Loan Document to skip one Scheduled Payment and add one month to the term of such Loan Document; provided, further, that such extension will not extend the date of the last payment of any Loan Document that terminates prior to the Stated Maturity one month beyond the Stated Maturity of the Notes.
(iii) As more specifically set forth below, in performing its servicing duties hereunder, the Servicer shall collect all payments required to be made by this the Obligors under the Contracts and enforce all material rights of the Issuer under the Contracts. The Servicer shall not assign, sell, pledge or exchange or in any way encumber or otherwise dispose of the Receivables or the Related Security, except as permitted hereunder or in the Indenture.
(b) The Servicer will deliver each of the accountings, statements and reports described in Article 4 hereof to each party as set forth therein.
(c) The Servicer shall maintain insurance coverage for employee dishonesty with respect to funds it holds in an amount greater than or equal to $500,000 per occurrence and coverage under an errors and omissions policy.
(d) Trendwest and the Servicer, if not Trendwest, will not consent (except as may be required by the reasonableness standard in Section 2.3 of the Third Amended Vacation Program Agreement, dated as of June 3, 1994, between Trendwest and WorldMark, as amended) to any request from WorldMark to allow WorldMark to encumber, pledge or hypothecate any vacation property under such Section 2.3.
Appears in 2 contracts
Sources: Servicing Agreement (Trendwest Resorts Inc), Servicing Agreement (Trendwest Resorts Inc)
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementwith each Underwriter as follows:
(a) it shall warrant Immediately following the execution of this Agreement, the Company will (x) prepare the Final Prospectus that complies with the Securities Act and defend its title the Securities Act Regulations and which sets forth the face amount of the Certificates and their terms not otherwise specified in the basic prospectus relating to all offerings of pass through certificates under the Registration Statement, the name of each Underwriter participating in the offering and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance, and such other information as you and the Company deem appropriate in connection with the offering of the Certificates and (y) file all material required to be filed by the Company with the Commission pursuant to Rule 433(d) within the time required by such rule. The Company will promptly transmit copies of the Final Prospectus to the Pledged Collateral, Commission for filing pursuant to Rule 424 and all material rights and will furnish to the security interest (including the priority thereof) Underwriters as many copies of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Final Prospectus as you shall reasonably request.
(b) except During the period when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a) under the Securities Act (“Rule 173(a)”) relating to the Certificates is required to be delivered under the Securities Act, the Company will promptly advise you of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus or any document that would as otherwise permitted a result thereof be incorporated by reference in this Agreement the Final Prospectus, (iii) any request by the Commission for any amendment of the Registration Statement or any amendment or supplement to the Final Prospectus or for any additional information relating thereto or to any document incorporated by reference therein, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the Finance Documentsinstitution or threatening of any proceeding for that purpose, it shall not sell, assign, transfer, charge, pledge or encumber and (v) the receipt by the Company of any notification with respect to the suspension of the qualification of the Certificates for sale in any manner jurisdiction or the institution or threatening of any part proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;withdrawal thereof.
(c) If, at any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Certificates is required to be delivered under the Securities Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall not take from be necessary to amend or supplement the Final Prospectus to comply with the Securities Act or the Securities Act Regulations, the Company promptly will prepare and file with the Commission, subject to paragraph (d) of this Section 3, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and the Company will use its reasonable efforts to have any undertaking such amendment to the Registration Statement or security in new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect of its liability hereunder to the Certificates). Neither the Representative’s consent to, nor the Underwriters’ delivery of, any such amendment or in respect supplement shall constitute a waiver of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, conditions set forth in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Section 4 hereof.
(d) it At any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Certificates is required to be delivered under the Securities Act or the Securities Act Regulations, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish you with copies of any such amendment or supplement or other documents proposed to be filed within a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which you shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;object.
(e) it shall give at least 30 days’ prior written The Company has furnished or will furnish, if requested, to the Representative and its counsel, without charge, conformed copies of the Original Registration Statement and of all amendments thereto, whether filed before or after such Registration Statement originally became effective (including exhibits thereto and the documents incorporated therein by reference) and the copies of the Original Registration Statement and each amendment thereto furnished to the 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. So long as delivery of a Final Prospectus (or in lieu thereof, a notice referred to Pledgee in Rule 173(a)) by the Underwriter may be required by the Securities Act, the Company will furnish as many copies of any (i) change of Statutory Prospectus, the location of Pledgor’s chief executive officeFinal Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request and the Final Prospectus and any amendments or supplements thereto furnished to each Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, (ii) change of Pledgor’s name, identity except to the extent permitted by Regulation S-T or structure or (iii) reorganization or reincorporation of Pledgor required under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Rule 424(e).
(f) it The Company shall use its reasonable efforts, in cooperation with the Underwriters, to qualify the Certificates for offering and sale under the applicable securities laws of such states in the United States as the Underwriters may reasonably designate and will maintain such qualifications in effect so long as required in connection with the distribution of the Certificates; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any termination jurisdiction in which it is not so qualified or to subject itself to taxation in respect of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights doing business in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee any such jurisdiction in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andwhich it is not otherwise so subject.
(g) The Company shall use the proceeds received by it from the sale of the Equipment Notes in the manner to be indicated in the Final Prospectus under “Use of Proceeds.”
(h) The Company shall indemnify cooperate with the Pledgee fromUnderwriters and use its reasonable efforts to permit the Certificates to be eligible for clearance and settlement through the facilities of DTC.
(i) The Company, during the period when a Final Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)) relating to the Certificates is required to be delivered, will file promptly all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
(j) The Company represents and agrees that, unless it obtains the prior consent of each Underwriter, and hold each Underwriter represents and agrees that, unless it harmless againstobtains the prior consent of the Company, it has not made and will not make any offer relating to the Certificates that would constitute an “issuer free writing prospectus,” as defined in Rule 433 or that would otherwise constitute a “free writing prospectus” as defined in Rule 405. Any such free writing prospectus consented to by the Company and all liabilities the Underwriters 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 respect tothe requirements of Rule 433 as applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(k) Between the date of this Agreement and the Closing Time, the Company will not, without the Representative’s prior consent, offer, sell or resulting from enter into any delay in paying, agreement to sell any and all stamp, excise, sales public debt securities registered under the Securities Act (other than the Certificates) or other taxes any debt securities which may be payable or determined to be payable with respect to sold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A under the Securities Act and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act.
(l) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Original Registration Statement, any of the Pledged Collateral Certificates remain unsold by the Underwriters, the Company will use its best efforts to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Certificates, in a form satisfactory to the Representative. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, use its best efforts to file a new shelf registration statement relating to the Certificates, in a form satisfactory to the Representative and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Certificates to continue as contemplated in connection with the transaction contemplated by this Agreementexpired registration statement relating to the Certificates. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
Appears in 1 contract
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementwith each Underwriter as follows:
(a) it shall warrant Immediately following the execution of this Agreement, the Company will (x) prepare the Final Prospectus that complies with the Securities Act and defend its title the Securities Act Regulations and which sets forth the face amount of the Class A Certificates and their terms not otherwise specified in the basic prospectus relating to all offerings of pass through certificates under the Registration Statement, the name of each Underwriter participating in the offering and the face amount of the Class A Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Class A Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance, and such other information as you and the Company deem appropriate in connection with the offering of the Class A Certificates and (y) file all material required to be filed by the Company with the Commission pursuant to Rule 433(d) within the time required by such rule. The Company will promptly transmit copies of the Final Prospectus to the Pledged Collateral, Commission for filing pursuant to Rule 424 and all material rights and will furnish to the security interest (including the priority thereof) Underwriters as many copies of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Final Prospectus as you shall reasonably request.
(b) except During the period when a prospectus (or in lieu, thereof, a notice referred to in Rule 173(a) under the Securities Act (“Rule 173(a)”) relating to the Class A Certificates is required to be delivered under the Securities Act, the Company will promptly advise you of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus or any document that would as otherwise permitted a result thereof be incorporated by reference in this Agreement the Final Prospectus, (iii) any request by the Commission for any amendment of the Registration Statement or any amendment or supplement to the Final Prospectus or for any additional information relating thereto or to any document incorporated by reference therein, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the Finance Documentsinstitution or threatening of any proceeding for that purpose, it shall not sell, assign, transfer, charge, pledge or encumber and (v) the receipt by the Company of any notification with respect to the suspension of the qualification of the Class A Certificates for sale in any manner jurisdiction or the institution or threatening of any part proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;withdrawal thereof.
(c) If, at any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Class A Certificates is required to be delivered under the Securities Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall not take from be necessary to amend or supplement the Final Prospectus to comply with the Securities Act or the Securities Act Regulations, the Company promptly will prepare and file with the Commission, subject to paragraph (d) of this Section 3, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and the Company will use its reasonable efforts to have any undertaking such amendment to the Registration Statement or security in new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect of its liability hereunder to the Class A Certificates). Neither your consent to, nor the Underwriters’ delivery of, any such amendment or in respect supplement shall constitute a waiver of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, conditions set forth in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Section 4.
(d) it At any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Class A Certificates is required to be delivered under the Securities Act or the Securities Act Regulations, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish you with copies of any such amendment or supplement or other documents proposed to be filed within a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which you shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;object.
(e) it shall give at least 30 days’ prior written The Company has furnished or will furnish, if requested, to you and your counsel, without charge, conformed copies of the Original Registration Statement and of all amendments thereto, whether filed before or after such Registration Statement originally became effective (including exhibits thereto and the documents incorporated therein by reference) and the copies of the Original Registration Statement and each amendment thereto furnished to the 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. So long as delivery of a Final Prospectus (or in lieu thereof, a notice referred to Pledgee in Rule 173(a)) by the Underwriter may be required by the Securities Act, the Company will furnish as many copies of any (i) change of Statutory Prospectus, the location of Pledgor’s chief executive officeFinal Prospectus and any amendments thereof and supplements thereto as you may reasonably request and the Final Prospectus and any amendments or supplements thereto furnished to each Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, (ii) change of Pledgor’s name, identity except to the extent permitted by Regulation S-T or structure or (iii) reorganization or reincorporation of Pledgor required under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Rule 424(e).
(f) it The Company shall use its reasonable efforts, in cooperation with the Underwriters, to qualify the Class A Certificates for offering and sale under the applicable securities laws of such states in the United States as the Underwriters may reasonably designate and will maintain such qualifications in effect so long as required in connection with the distribution of the Class A Certificates; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any termination jurisdiction in which it is not so qualified or to subject itself to taxation in respect of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights doing business in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee any jurisdiction in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andwhich it is not otherwise so subject.
(g) The Company intends to use the proceeds received by it from the sale of the Equipment Notes in the manner to be indicated in the Final Prospectus under “Use of Proceeds.”
(h) The Company shall indemnify cooperate with the Pledgee fromUnderwriters and use its reasonable efforts to permit the Class A Certificates to be eligible for clearance and settlement through the facilities of DTC.
(i) The Company, during the period when a Final Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)) relating to the Class A Certificates is required to be delivered, 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 and the Exchange Act Regulations.
(j) The Company represents and agrees that, unless it obtains the prior consent of each Underwriter, and hold each Underwriter represents and agrees that, unless it harmless againstobtains the prior consent of the Company, it has not made and will not make any offer relating to the Class A Certificates that would constitute an “issuer free writing prospectus,” as defined in Rule 433 or that would otherwise constitute a “free writing prospectus” as defined in Rule 405. Any such free writing prospectus consented to by the Company and all liabilities the Underwriters 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 respect tothe requirements of Rule 433 as applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(k) Between the date of this Agreement and the Closing Time, the Company will not, without your prior consent, offer, sell or resulting from enter into any delay in paying, agreement to sell any and all stamp, excise, sales public debt securities registered under the Securities Act (other than the Class A Certificates) or other taxes any debt securities which may be payable or determined to be payable with respect to any sold in a transaction exempt from the registration requirements of the Pledged Collateral or Securities Act in connection with reliance on Rule 144A under the transaction contemplated by this AgreementSecurities Act and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act.
Appears in 1 contract
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementand agrees as follows:
(a) it shall warrant and defend its title Before the termination of the offering of the Securities, not to the Pledged Collateral, and all material rights and the security interest file any amendment or supplement (including the priority thereofFinal Prospectus) to either of the Pledgee conferred by this Agreement in and Registration Statements relating to the Pledged CollateralSecurities or the Basic Prospectus (other than an Incorporated Document filed under the Exchange Act) unless a copy thereof shall have first been submitted to the Representatives within a reasonable period of time prior to the filing thereof and the Representatives shall not have reasonably objected thereto in writing. Subject to the foregoing sentence, the Company will cause the Final Prospectus to be filed with the Commission or transmitted for filing with the Commission in each case at accordance with the cost requirements of the Pledgor against the claims and demands of all persons whomsoever;Rule 424(b).
(b) except As soon as otherwise permitted in this Agreement the Company is advised thereof, to advise the Representatives (i) when the Final Prospectus shall have been filed with the Commission or mailed to the Commission for filing pursuant to Rule 424(b), (ii) when any amendment to either of the Registration Statements relating to the Securities shall have become effective, (iii) of the initiation or threatening by the Commission of any proceedings for the issuance of any order suspending the effectiveness of either of the Registration Statements, or the Finance Documentsqualification of the Indenture, it shall not sell(iv) of receipt by the Company or any representative of or attorney for the Company of any other communication from the Commission relating to the Company (except for routine communications relating to the broker-dealer business of the Company), assigneither of the Registration Statements (except for communications relating to securities other than the Securities), transferthe Basic Prospectus, charge, pledge any Interim Prospectus or encumber the Final Prospectus and (v) of the receipt by the Company or any representative of or attorney for the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any manner jurisdiction or the initiation or threatening of any part proceeding for such purpose. The Company will make every reasonable effort to prevent the issuance of an order suspending the effectiveness of either of the Pledged Collateral Registration Statements or suffer the qualification of the Indenture and if any such order is issued to exist any encumbrance on obtain as soon as possible the Pledged Collateral, other than Permitted Liens;lifting thereof.
(c) To deliver to the Representatives, without charge, (i) upon request and to the extent not previously delivered, signed copies of the Registration Statements and of any amendments thereto (including all exhibits filed with, or incorporated by reference in, any such document) and (ii) as many conformed copies of the Registration Statements and of any amendments thereto which shall become effective on or before the Closing Date (excluding exhibits) as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be delivered by an Underwriter or dealer, to deliver, without charge to the Representatives and to Underwriters and dealers, at such office or offices as the Representatives may designate, as many copies of any Interim Prospectus and the Final Prospectus as the Representatives may reasonably request.
(e) During the period in which copies of the Final Prospectus are to be delivered as provided in paragraph (d) above, if any event occurs as a result of which it shall be necessary to amend or supplement the Final Prospectus in order to ensure that no part of the Final Prospectus contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances existing when the Final Prospectus is to be delivered to a purchaser, not misleading, forthwith to prepare, submit to the Representatives, file with the Commission and deliver without charge, to the Underwriters and to dealers (to the extent requested and at the addresses furnished by the Representatives to the Company) to whom Securities may have been sold by the Underwriters, and to other dealers upon request, either amendments or supplements to the Final Prospec- tus so that the statements in the Final Prospectus, as so amended or supplemented, will comply with the standard set forth in this paragraph (e). Delivery by Underwriters of any such amendments or supplements to the Final Prospectus shall not constitute a waiver of any of the conditions set forth in Section 5 hereof.
(f) To make generally available to the Company's security holders, as soon as practicable but in no event later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(g) To take from such action as the Representatives may request in order to qualify the Securities for offer and sale under the securities or "blue sky" laws of such jurisdictions as the Representatives may reasonably request; provided that in no event shall the Company be obligated to subject itself to taxation or to qualify to do business in any undertaking jurisdiction where it is not now so qualified or security to take any action that would subject it to service of process in respect 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) For so long as any of the Securities remain outstanding, to supply to the Representatives and to each other Underwriter who may so request in writing copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to its lenders or to the holders of any class of its liability hereunder capital stock and to furnish to the Representatives copies of each annual or other report it shall be required to file with the Commission.
(i) To pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including those relating to (i) the preparation, printing and filing of the Registration Statements and exhibits thereto, the Basic Prospectus, any Interim Prospectus and the Final Prospectus, all amendments and supplements to the Registration Statements, any Interim Prospectus and the Final Prospectus, and the preparation and printing or other reproduction of this Agreement, the Indenture and any agreement among underwriters and agreements with dealers relating to the offering of the Securities, (ii) the issuance of the Securities and the preparation and delivery of certificates for the Securities, (iii) the registration or qualification of the Securities for offer and sale under the securities or "blue sky" laws of the various jurisdictions referred to in respect paragraph (g) above, including the fees and disbursements of counsel for the Underwriters in connection therewith and the preparation and printing of "blue sky" memoranda and legal investment memoranda, (iv) the furnishing to the Representatives and the Underwriters of copies of any other liability Interim Prospectus and the Final Prospectus and all amendments or supplements to any Interim Prospectus and the Final Prospectus, and of the several documents required by this Section 6 to be so furnished, including costs of shipping and mailing, (v) the filing requirements, if any, of the National Association of Securities Dealers, Inc., in connection with its review of corporate financings, (vi) the furnishing to the Representatives and to the Underwriters of copies of all reports and information required by paragraph (h) above, including costs of shipping and mailing, (vii) all transfer taxes, if any, with respect to the sale and delivery of the Securities by the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive officeseveral Underwriters, (iiviii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or fees charged by rating agencies in connection with the transaction contemplated by rating of the Securities, (ix) the fees and expenses of the Trustee and (ix) the fee, if any, for listing the Securities on any national securities exchange.
(j) For a period beginning at the time of execution of this AgreementAgreement and ending on the later of the Closing Date or the date on which any price restrictions on the sale of the Securities are terminated, without the prior consent of the Underwriters or the Representatives, not publicly to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company.
(k) If the Final Prospectus states that the Securities will be listed on a stock exchange, to use its best efforts to cause the Securities to be listed on such stock exchange.
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during Section 7.01 Conduct of Business by MOP and Sellers Pending the continuance Closing. MOP and each Seller agree that, between the date of this AgreementAgreement and the Closing Date, unless Purchaser shall otherwise agree in writing, MOP and Sellers will continue to operate the Properties in the ordinary course of business consistent with past practice, comply with the terms, covenants and conditions of the Leases and other agreements relating to the Properties to which MOP and/or the Sellers are a party and perform each of the obligations of the landlord under each of the Leases; provided, however, neither MOP nor any Seller shall, between the date of this Agreement and the Closing Date, directly or indirectly, take, agree to take or allow, cause or permit any other Person to take, agree, agree to take or allow, cause or permit any of the following actions without the prior written consent of Purchaser, which consent may be withheld by Purchaser in its sole discretion:
(a) it shall warrant and defend its title to sell, pledge, dispose of, transfer, encumber, or authorize the Pledged Collateralissuance, and all material rights and the security interest (including the priority thereof) sale, pledge, disposition, transfer, or any Encumbrance on, any of the Pledgee conferred by this Agreement Properties except in the ordinary course of business consistent with past practice and to where immaterial (both individually and in the Pledged Collateral, aggregate) in each case at the cost of the Pledgor against the claims both amount and demands of all persons whomsoeversignificance;
(b) except as otherwise permitted in this Agreement incur, cancel, pay, prepay, discharge or satisfy any claim or liability relating to the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part Properties (other than regularly scheduled payments of the Pledged Collateral or suffer to exist any encumbrance on the Pledged CollateralExisting Secured Indebtedness), other than Permitted Liensliabilities which could not reasonably be expected to prevent or delay the consummation of the transactions contemplated by this Agreement and are consistent with past practice;
(c) it shall enter into a new Lease, Lease amendment or Lease renewal (to which the Tenant is not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(dcontractually entitled) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral Properties or terminate any existing Lease;
(d) make any change with respect to Sellers' accounting policies, principles, methods or procedures, including revenue recognition policies, other than as required by GAAP;
(e) make any material Tax election or settle or compromise any material Tax liability relating to any of the Properties;
(f) permit any insurance policy that names MOP or any Seller as a beneficiary or a loss payee and relates to any of the Properties to be cancelled, terminated or not renewed, except if such termination of cancellation will not be effective until Closing; or
(g) other than Contracts entered into in connection the regular course of business consistent with past practice, authorize or enter into any Contract or take any action which would make any of the transaction contemplated by representations or warranties of MOP or any Seller contained in this AgreementAgreement untrue or incorrect in any material respect, or prevent MOP or any Seller from performing or cause MOP or any Seller not to perform its covenants and agreements herein or result in any of the conditions to the Closing set forth herein not being satisfied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CNL Retirement Properties Inc)
Covenants. The Pledgor hereby covenants that during Until payment in full of the continuance Note and payment and performance of this Agreementall other obligations of Borrower hereunder, and so long as any portion of the Loan referenced herein remain in effect, Borrower agrees as follows:
(a) it The Mortgaged Property shall warrant comply with all applicable restrictions, conditions, ordinances, regulations and defend its title laws of governmental departments and agencies having jurisdiction over the Mortgaged Property, and shall not violate any private restrictions or covenants or encroach upon or interfere with easements affecting the Mortgaged Property, and that Borrower will commence and carry on continuously, diligently and with reasonable dispatch, the construction of the Project in conformance to the Pledged CollateralDrawings and Specifications, free from all mechanic's, laborer's and material man's liens and in a good and workmanlike manner, and all material rights and complete the security interest (including same prior to the priority thereof) maturity date of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Note.
(b) except as otherwise permitted To keep, perform, enforce and maintain in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part full force and effect all of the Pledged Collateral or suffer to exist any encumbrance on terms, covenants, conditions and requirements of the Pledged Collateral, Project Documents (other than Permitted Liens;immaterial terms approved by Lender in the reasonable exercise of its discretion); not to amend, modify, supplement, terminate, cancel or waive any of the terms, covenants, conditions or requirements of any of said documents without the prior written consent of Lender; and to execute and deliver such amendments, modifications, supplements and extensions of said documents as may be reasonably requested by Lender.
(c) it shall not take from To use its best efforts to require the Company any undertaking or security General Contractor and each Contractor to comply with all rules, regulations, ordinances and laws bearing on its conduct in respect of its liability hereunder or in respect of any other liability the construction of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Project.
(d) To furnish to Lender as soon as possible and in any event within seven (7) days after Borrower has obtained knowledge of the occurrence of an event that would constitute an Event of Default hereunder or a violation of any of the covenants or obligations of Borrower under this Agreement or that would cause any of the representations or warranties hereunder to be false or misleading in any respect, or an event that with the giving of notice or lapse of time or both would constitute an Event of Default, that is continuing on the date of such statement, in which case Borrower shall deliver a signed statement setting forth the details of such violation or event and the action that has been taken, is being taken, or that Borrower proposes to take, to correct the same.
(e) To hold Lender harmless, and Lender shall have no liability or obligation of any kind to Borrower, creditors of Borrower or any third party, in connection with any defective, improper or inadequate workmanship performed in or about, or materials supplied to the Mortgaged Property, or any mechanic's, supplier's or material man's liens arising as a result of such defective, improper or inadequate workmanship or materials, and upon Lender's request, to replace or cause to be replaced, any such defective, improper or inadequate workmanship or materials.
(f) To pay and discharge all taxes, assessments and governmental charges or levies imposed upon Borrower or upon its income or profits, or upon its assets or properties, prior to the date on which penalties attach thereto, and all lawful claims that, if unpaid, might become a lien or charge upon the property or assets of Borrower; provided, however, that Borrower shall not be required to pay any such tax, assessment, charge, levy or claim, the payment of which is being contested in good faith and by proper proceedings and for which it shall furnish to Pledgee from time to time have set aside adequate reserves.
(g) To keep the Mortgaged Property and all improvements, buildings and fixtures thereon in good working order and condition.
(h) As soon as available, and within one hundred twenty (120) days after the end of each calendar year, a copy of the annual financial statements of Borrower, that shall include the balance sheet of Borrower as at the end of such year and schedules further identifying related statements of income and describing the Pledged Collateral as Pledgee reasonably requestsexpenses, statement of changes in financial position, a statement of changes in capital accounts and a statement of allocation of distribution of profits and losses of Borrower, all in reasonable detail;, prepared in accordance with GAAP (or tax accounting reconciled to GAAP) and reviewed by a reputable accounting firm.
(ei) it Commencing on February 25, 2012 and within twenty-five (25) days after the end of each month, a copy of the compiled monthly financial statement of Borrower that shall give include the balance sheet of Borrower as at the end of such month and related statements of income and expenses, statement of changes in financial position, a statement of changes in capital accounts and a statement of allocation of distribution of profits and losses of Borrower, all in reasonable detail, prepared in accordance with GAAP (or tax accounting reconciled to GAAP). Such statements shall be accompanied by a Covenant Compliance Certificate in the form of Exhibit C to the Loan Agreement.
(j) Within ten (10) days after Lender's request therefor, Borrower shall deliver to Lender such other information as Lender may reasonably request from time to time.
(k) Borrower shall maintain and preserve its existence as a limited liability company and all rights, privileges, licenses, patents, patent rights, copyrights, trademarks, trade names, franchises and other authority to the extent material and necessary for the conduct of its business in the ordinary course as conducted from time to time. Without at least 30 days’ days prior written notice to Pledgee of any Borrower shall not (i) change of the location of Pledgor’s chief executive officeits legal name, (ii) change its state of Pledgor’s nameorganization, identity or structure or (iii) reorganization or reincorporation change the location of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;its chief executive office.
(fl) it Promptly upon entering into a Material Contract, Borrower shall not notify Lender of the same and collaterally assign such Material Contract to Lender and, if requested by Lender, cause the counter party to such Material Contract to consent to such collateral assignment.
(m) If Borrower acquires any termination of or amendment to Collateral which may have constituted Farm Products in the Organizational Documents or other organizational documents possession of the Company seller or supplier thereof, Borrower shall, at its own expense, use it best efforts to take such steps to insure that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority all liens and security interests and encumbrances of any kind (except the security interests of granted to Lender pursuant hereto or under the Pledgee Loan Documents) in such acquired Collateral are terminated or released, including, without limitation, in the Pledged Collateralcase of such Farm Products produced in a state which has established a Central Filing System (as defined in the Food Security Act), registering with the rights Secretary of State of such state (or such other party or office designated by such state) and remedies otherwise take such reasonable actions necessary, as prescribed by the Food Security Act, to purchase Farm Products free of liens, security interests and encumbrances of any kind (except the Pledgee security interests granted to the Lender pursuant hereto or under this Agreement the Loan Documents); provided, however, that Borrower may contest and need not obtain the release or termination of any other Finance Document lien, security interest or their ability to exercise the sameencumbrance asserted by any creditor of any seller of such Farm Products, or cause an Event of Default to occur; and
(g) so long as it shall indemnify be contesting the Pledgee fromsame by proper proceedings and maintain appropriate accruals and reserves therefore in accordance with GAAP. Upon Lender's request, Borrower agrees to forward to Lender promptly after receipt copies of all notices of liens and hold it harmless againstmaster lists of effective financing statements delivered to the Borrower pursuant to the Food Security Act, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect notices and/or lists pertain to any of the Pledged Collateral Collateral. Upon the Lender's request, Borrower agrees to provide Lender with the names of persons or entities who supply Borrower with such Farm Products and such other information as Lender may reasonably request with respect to such persons and entities.
(n) If any warehouse receipt or receipts in the nature of a warehouse receipt is issued in respect of any portion of the Collateral, then Borrower (i) will not permit such warehouse receipt or receipts in the nature thereof to be "negotiable" as such terms is used in Article 7 of the UCC and (ii) will deliver all such receipts to Lender (or person or entity designated by Lender) within five (5) days of Lender's request and from time to time thereafter. If no default or Event of Default or occurrence which with the passage of time or the giving of notice would constitute a default or Event of Default then exists, Lender agrees to deliver to Borrower any receipt so held by Lender or its designated agent upon Borrower's request in connection with Borrower's sale or other disposition of the transaction contemplated underlying Collateral, if such disposition is in the ordinary coarse of Borrower's business.
(o) Commencing on February 25, 2012 and within twenty-five (25) days after the end of each month, a comparison of Borrower's monthly actual results to the monthly budgeted and forecast results, in a form satisfactory to Lender.
(p) The Borrower shall pay to the Lender for application to the principal balance of the Note that amount equal to fifty percent (50%) of the Borrower's monthly Project EBTDA in excess of $300,000 as shown on the Borrower's monthly financial statements on or before the twenty-fifth day of the following month (the “EBTDA Payment”), with the first EBTDA Payment due on February 25, 2012. To the extent that the Borrower makes any unscheduled prepayment of principal on the Note (a “Principal Prepayment”), the amount of such Principal Prepayment shall be credited on an accumulated basis to the next EBTDA Payment owed by this Agreementthe Borrower. By way of example only and not in limitation, if the Borrower makes a $25,000.00 Principal Prepayment on July 31 and a EBTDA Payment in the amount of $15,000.00 is due on August 25, then the EBTDA Payment due on August 25 will be deemed to be satisfied and the remaining $10,000.00 of the July Principal Prepayment will be credited to the next monthly EBTDA Payment that is owed by the Borrower.
(q) The Borrower shall maintain at all times (i) a minimum Tangible Net Worth of not less than Two Million Dollars ($2,000,000.00) through June 30, 2012 and (ii) from and after July 1, 2012 a minimum Tangible Net Worth of not less than Two Million Two Hundred Fifty Thousand Dollars ($2,250,000.00). As used herein "Tangible Net Worth" shall mean unit holders' equity less any assets representing amounts or obligations due from employees, unit holders, insiders and any intangible assets and subordinated debt. Intangible Assets are those assets, according to GAAP, without physical substance which are classified as having value by carrying such value on the balance sheet of the entity claiming such value. Intangible assets include, but are not limited to, goodwill, patents, trademarks, organizational costs, copyrights, franchise rights, territory rights, licenses, memberships, exploration rights, processes, and designs.
Appears in 1 contract
Sources: Construction Term Loan Agreement (Iowa Renewable Energy, LLC)
Covenants. The Pledgor hereby covenants that during Acknowledgements and Agreements of the continuance of Company. As a condition to the Buyer's obligation to purchase the Securities contemplated by this Agreement, and as a material inducement for the Buyer to enter into this Agreement and the other Transaction Documents, until all of the Company's obligations hereunder and the Notes are paid and performed in full, or within the timeframes otherwise specifically set forth below, the Company shall comply with the following covenants:
(a) Filings. From the date hereof until the date that is six (6) months after all the Conversion Shares either have been sold by the Buyer, or may permanently be sold by the Buyer without any restrictions pursuant to Rule 144 (the "Registration Period"), the Company shall timely make all filings required to be made by it shall warrant under the 1933 Act, the 1934 Act, Rule 144 or any United States state securities laws and defend its title regulations thereof applicable to the Pledged CollateralCompany or by the rules and regulations of the Principal Trading Market, and all material rights such filings shall conform to the requirements of applicable laws, regulations and government agencies, and, unless such filings are publicly available on the security interest SEC's ▇▇▇▇▇ system (including via the priority thereofSEC's web site at no additional charge), the Company shall provide a copy thereof to the Buyer promptly after such filings. Without limiting the foregoing, the Company agrees to file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to the Buyer promptly after such filing. Additionally, within four (4) Trading Days following the date of this Agreement, the Company shall file a current report on Form 8-K describing the terms of the Pledgee conferred transactions contemplated by this Agreement the Transaction Documents in the form required by the 1934 Act and approved by the Buyer and attaching the material Transaction Documents as exhibits to the Pledged Collateralsuch filing. The Company shall further redact all confidential information from such Form 8-K. Additionally, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral Buyer, so long as Pledgee reasonably requeststhe Buyer owns any Securities, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any promptly upon request, (i) change a written statement by the Company that it has complied with the reporting requirements of Rule 144, the location of Pledgor’s chief executive office1933 Act and the 1934 Act, (ii) change a copy of Pledgor’s namethe most recent annual or quarterly report of the Company, identity or structure or and (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the such other information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which as may be payable or determined reasonably requested to be payable with respect permit the Buyer to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementsell such Securities pursuant to Rule 144 without registration.
Appears in 1 contract
Sources: Securities Purchase Agreement (Novation Holdings Inc)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this Agreementseveral Underwriters as follows:
(a) it shall warrant and defend its title If the Company has elected to the Pledged Collateral, and all material rights and the security interest (including the priority thereofrely upon Rule 462(b) of the Pledgee conferred Rules and Regulations to increase the size of the offering registered under the Act and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462(b) Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Act; prior to the First Closing, the Company will prepare and file with the Commission, promptly upon your reasonable request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, are necessary or advisable in connection with the distribution of the Securities by this Agreement the Underwriters; and the Company will furnish the Representative and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement or Prospectus and will not file any amendment or supplement to the Registration Statement or Prospectus to which you shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of the Time of Sale Disclosure Package, any Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and after receipt of notice, the Company will use its reasonable best efforts to prevent the issuance of any stop order or to obtain its lifting if such a stop order should be issued. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A and 430B, as applicable, under the Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(i) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Act by any Underwriter or dealer in connection with sales by an Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use reasonable best efforts to comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Final Prospectus. If during such period any event occurs as a result of which the Final Prospectus (or if the Final Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Final Prospectus (or if the Final Prospectus is not yet available to prospective investors, the Time of Sale Disclosure Package) to comply with the Act, the Company will promptly notify you and will amend the Registration Statement or supplement the Final Prospectus (or, if the Final Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(ii) If at any time following issuance of an Issuer Free Writing Prospectus there occurred, or through the Prospectus Delivery Period occurs, an event or development as a result of which such Issuer Free Writing Prospectus conflicted or during such time would conflict with the information contained in the Registration Statement or any Prospectus relating to the Securities or included or during such time would include an untrue statement of a material fact or omitted or during such time would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company has promptly notified or promptly will notify the Representative and has promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(d) The Company shall take or cause to be taken all necessary action to qualify the Securities for sale under the securities laws of such jurisdictions as you reasonably designate or and to continue such qualifications in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.
(e) The Company will furnish, at its own expense, to the Underwriters and counsel for the Underwriters copies of the Registration Statement (three of which will be signed and will include all consents and exhibits filed therewith), and to the Pledged CollateralUnderwriters and any dealer each Prospectus, the Time of Sale Disclosure Package, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case at as soon as available and in such quantities as you may from time to time reasonably request.
(f) The Company will make generally available to its security holders as soon as practicable, but in no event later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations. The parties agree that such obligation may be satisfied by filings with the Commission made on ▇▇▇▇▇.
(g) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause to be paid (i) all expenses (including transfer taxes allocated to the respective transferees of the Securities) incurred in connection with the delivery to the Underwriters of the Securities, (ii) all expenses and fees (including, without limitation, fees and expenses of the Company’s accountants and legal counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, each Preliminary Prospectus, the Time of Sale Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectus and any amendment thereof or supplement thereto, and the printing, delivery, and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions), (iii) all filing fees and fees and disbursements of the Underwriters’ counsel incurred in connection with the qualification of the Securities for offering and sale by the Underwriters or by dealers under the securities or blue sky laws of the states and other jurisdictions which you shall designate, (iv) the fees and expenses of any transfer agent or registrar, (v) the filing fees and fees and disbursements of Underwriters’ counsel incident to any required review and approval by FINRA of the terms of the sale of the Securities, (vi) listing fees, if any, (vii) the cost and expenses of the Pledgor against Company relating to investor presentations or any “roadshow” undertaken in connection with marketing of the claims Securities, (viii) all other costs and demands expenses of all persons whomsoever;
(b) except as the Underwriter incident to the performance of its obligations hereunder not otherwise permitted specifically provided for herein, including the fees and expenses of the Underwriter’s legal counsel, provided, however that such costs and expenses provided for in this Agreement or subsection (viii) (which, for the Finance Documentsavoidance of doubt, it shall include all fees and disbursements of Underwriters’ counsel other than those incurred in connection with the FINRA filing referred to in subsection (v), which fees and disbursements shall be reimbursed in full notwithstanding the cap set forth in this subsection (viii)) shall not sellexceed $80,000, assign, transfer, charge, pledge or encumber in any manner any part and (ix) all other costs and expenses of the Pledged Collateral Company incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein. If this Agreement is terminated by the Representative pursuant to Section 9 hereof or suffer to exist if the sale of the Securities provided for herein is not consummated by reason of any encumbrance failure, refusal or inability on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability part of the Company to perform any agreement on its or their part to be performed, or because any other condition of the Pledgor Underwriters’ obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the several Underwriters for all reasonable out-of-pocket accountable disbursements (including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges) incurred by the Underwriters in connection with their investigation, preparing to market and marketing the Securities or in contemplation of performing their obligations hereunder. The Company shall not in any event be liable to any of the Underwriters for loss of anticipated profits from the transactions covered by this Agreement.
(h) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder for the purposes set forth in the Time of Sale Disclosure Package and in the Final Prospectus and will file such reports with the Commission with respect to the sale of the Securities and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, application of the Pledgor;proceeds therefrom as may be required in accordance with Rule 463 of the Rules and Regulations.
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change The Company will not, without the prior written consent of Canaccord Genuity Inc., from the date of execution of this Agreement and continuing to and including the date 90 days after the date of the location Final Prospectus (the “Lock-Up Period”), (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Pledgor’s chief executive officeCommon Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including, for the avoidance of doubt, any sales of shares of Common Stock pursuant to the Common Stock Purchase Agreement, dated as of January 15, 2013, by and between the Company and Aspire Capital Fund, LLC) or (ii) change enter into any swap or other agreement that transfers, in whole or in part, any of Pledgor’s namethe economic consequences of ownership of the Common Stock, identity or structure whether any such transaction described in clause (i) or (iiiii) reorganization above is to be settled by delivery of Common Stock or reincorporation of Pledgor under the laws of another jurisdictionsuch other securities, in each case from cash or otherwise, except (A) to the Underwriters pursuant to this Agreement or (B) in the ordinary course of business pursuant to the Company’s Amended and Restated 2002 Stock Plan or 2011 Equity Incentive Plan. Except as required under any agreement existing on the date of this Agreement, the Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period. Notwithstanding the foregoing, the Company shall be permitted during the Lock-Up Period to file a post-effective amendment to its registration statement on Form S-1 (File No. 333-186259) for the purpose of reflecting in the prospectus contained in such registration statement facts or events representing a fundamental change in the information specified set forth in such registration statement as required by the undertaking set forth in Item 17(a)(1)(ii) of Part B II of Schedule 1;such registration statement.
(fj) it shall not consent The Company has caused to any termination of or amendment be delivered to you prior to the Organizational Documents date of this Agreement the Lock-Up Agreements from each of the Company’s directors and officers. If any additional persons shall become directors or other organizational documents officers of the Company prior to the end of the Lock-Up Period, the Company shall cause each such person, prior to or contemporaneously with their appointment or election as a director or officer of the Company, to execute and deliver to you a Lock-Up Agreement. The Company will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that could would constitute a breach of or default under the Lock-Up Agreements.
(k) The Company agrees to announce the Underwriters’ intention to release any director or officer of the Company from any of the restrictions imposed by any Lock-Up Agreement, by issuing, through a major news service, a press release in form and substance satisfactory to you promptly following the Company’s receipt of any notification from you in which such intention is indicated, but in any case not later than the close of the third business day prior to the date on which such release or waiver is to become effective; provided, however, that nothing shall prevent you, on behalf of the Underwriters, from announcing the same through a major news service, irrespective of whether the Company has made the required announcement; provided further, that no such announcement shall be made of any release or waiver granted solely to permit a transfer of securities that is not for consideration and where the transferee has agreed in writing to be bound by the terms of a Lock-Up Agreement, in the form set forth as Exhibit A hereto.
(l) The Company has not taken and will not take any action designed to or which might reasonably be expected to adversely affect the Pledged Collateralcause or result in, or which has constituted, the Pledgor’s rights in stabilization or manipulation of the Pledged Collateralprice of any security of the Company to facilitate the sale or resale of the Securities.
(m) During the Prospectus Delivery Period, the validityCompany will file on a timely basis with the Commission such periodic and special reports as required by the Rules and Regulations.
(n) During the Prospectus Delivery Period, perfection or priority the Company and its Subsidiary will comply with all applicable provisions of the security interests ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(o) The Company represents and agrees that, unless it obtains the prior written consent of Canaccord Genuity Inc., and each Underwriter severally represents and agrees that, unless it obtains the prior written consent of the Pledgee Company and Canaccord Genuity Inc., neither it nor its Subsidiary has made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Pledged CollateralAct, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the rights and remedies Act, required to be filed with the Commission; provided that the prior written consent of the Pledgee under this Agreement parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II. Any such free writing prospectus consented to by the Company and Canaccord Genuity Inc. 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 164 and Rule 433 applicable to any other Finance Document or their ability Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to exercise avoid a requirement to file with the same, or cause an Event of Default to occur; andCommission any electronic roadshow.
(gp) it shall indemnify The Company will promptly notify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined Representative if the Company ceases to be payable with respect an Emerging Growth Company at any time prior to any the later of (i) completion of the Pledged Collateral or in connection with the transaction contemplated by this Agreement.distribution of
Appears in 1 contract
Covenants. (a) The Pledgor hereby Company covenants that during and agrees with the continuance several Underwriters as follows:
(i) During the period beginning on the date hereof and ending on the later of the Second Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered assuming the absence of Rule 172 under the Securities Act, in connection with sales by an underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement (including any Rule 462(b) Registration Statement), the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative or counsel to the Underwriters reasonably object. Subject to this Section 4(a)(i), immediately following execution of this Agreement:, the Company will prepare the Prospectus containing the information omitted pursuant to Rule 430A and other selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the Representative and the Company may deem appropriate, and if requested by the Representative, an Issuer Free Writing Prospectus containing the selling terms of the Securities and such other information as the Company and the Representative may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each Issuer Free Writing Prospectus.
(aii) it After the date of this Agreement, the Company shall warrant and defend its title to promptly advise the Pledged Collateral, and all material rights and the security interest Representative in writing (including the priority thereofA) of the Pledgee conferred by this Agreement in receipt of any comments of, or requests for additional or supplemental information from, the Commission, (B) of the time and date of any filing of any post-effective amendment to the Pledged CollateralRegistration Statement or any amendment or supplement to any Preliminary Prospectus, in each case the Time of Sale Disclosure Package or the Prospectus, (C) of the time and date that any post-effective amendment to the Registration Statement becomes effective, (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, or (E) of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the cost earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430A, as applicable, under the Pledgor against Securities Act and will use its reasonable efforts to confirm that any filings made by the claims and demands of all persons whomsoever;Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission (without reliance on Rule 424(b)(8) or Rule 164(b)).
(biii) except as otherwise permitted in this Agreement or (A) During the Finance DocumentsProspectus Delivery Period, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of will comply as far as it is able with all requirements imposed upon it by the Company to Securities Act, as now and hereafter amended, and by the Pledgor Rules and the Pledgor shall not prove nor have the right of proofRegulations, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements and schedules further identifying and describing therein, in the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change light of the location of Pledgor’s chief executive officecircumstances then existing, (ii) change of Pledgor’s namenot misleading, identity or structure if during such period it is necessary or (iii) reorganization or reincorporation of Pledgor under appropriate in the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents opinion of the Company that could reasonably be expected or its counsel or the Representative or counsel to adversely affect the Pledged CollateralUnderwriters to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Pledgor’s rights in Time of Sale Disclosure Package) to comply with the Pledged CollateralSecurities Act, the validityCompany will promptly notify you and will amend the Registration Statement or supplement the Prospectus (or, perfection or priority if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) at the expense of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement Company so as to correct such statement or any other Finance Document omission or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementeffect such compliance.
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer covenants and agrees with the several Underwriters that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations a Prospectus in a form approved by this Agreement the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations; (ii) not file any amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in each case at writing or which is not in compliance with the cost Rules and Regulations; and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Pledgor against Prospectus and prior to the claims and demands termination of all persons whomsoever;the offering of the Shares by the Underwriters.
(b) except as otherwise permitted in this Agreement or The Issuer has not distributed and without the Finance Documentsprior consent of the Representatives, it shall will not selldistribute any prospectus or other written offering material (including, assignwithout limitation, transfer, charge, pledge or encumber any offer relating to the Shares that would constitute a Free Writing Prospectus) in any manner any part connection with the offering and sale of the Pledged Collateral or suffer to exist any encumbrance on the Pledged CollateralShares, other than Permitted Liens;the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer and the Representatives, it will not make, any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and the Representatives is listed on Schedule II(a) or Schedule II(b) hereto. The Issuer has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which any Issuer Free Writing Prospectus which is then in use would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
(c) it shall The Issuer will not take from take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the Company any undertaking stabilization or security in respect manipulation of its liability hereunder or in respect the price of any other liability securities of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Issuer.
(d) it The Issuer will advise the Representatives promptly (i) when the Registration Statement or any post-effective amendment thereto shall furnish have become effective; (ii) of receipt of any comments from the Commission; (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to Pledgee from time the Prospectus or for any additional information; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Issuer will use its reasonable best efforts to time statements prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and schedules further identifying and describing to obtain as soon as possible the Pledged Collateral as Pledgee reasonably requestslifting thereof, all in reasonable detail;if issued.
(e) it The Issuer will cooperate with the Representatives in endeavoring to qualify the Shares for sale under (or obtain exemptions from the application of) the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Issuer shall give at least 30 days’ prior written notice not be required to Pledgee of any (i) change of the location of Pledgor’s chief executive officequalify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) change file any general consent to service of Pledgor’s name, identity or structure process in any such jurisdiction or (iii) reorganization subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or reincorporation may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Shares.
(f) it shall not consent The Issuer will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any termination Preliminary Prospectus and any Issuer Free Writing Prospectuses as the Representatives may reasonably request. The Issuer will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or amendment as thereafter amended or supplemented, as the Representatives may reasonably request. At the request of the Representatives, the Issuer will deliver to the Organizational Documents Representatives at or other organizational documents before the Closing Date, four copies of the Company signed Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that could may reasonably be expected to adversely affect requested) and of all amendments thereto, as the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andRepresentatives may reasonably request.
(g) it shall indemnify The Issuer will comply with the Pledgee fromSecurities Act and the Rules and Regulations, and hold the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If the Pricing Prospectus is being used to solicit offers to buy Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it harmless againstbecomes necessary to amend or supplement the Pricing Prospectus in order to make the statements therein (taken together with the Issuer Free Writing Prospectuses and other documents listed in Schedule II(a) hereto), in the light of the circumstances existing at such time, not misleading, or any event shall occur as a result of which, the information in the Pricing Prospectus (taken together with the Issuer Free Writing Prospectuses and other documents listed in Schedule II(a) hereto) conflicts with information contained in the Registration Statement then on file or if it is necessary at any time to amend or supplement the Pricing Prospectus (taken together with the Issuer Free Writing Prospectuses and other documents listed in Schedule II(a) hereto) to comply with any law, the Issuer promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Pricing Prospectus so that the Pricing Prospectus as so amended or supplemented will not, in the light of the circumstances at such time, be misleading, or so that the Pricing Prospectus will comply with the law. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer (or in lieu thereof the notice referred to in Rule 173 under the Securities Act), any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus (or in lieu thereof the notice referred to in Rule 173 under the Securities Act) is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Issuer promptly will prepare and all liabilities file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173 under the Securities Act) is so delivered, be misleading, or so that the Prospectus will comply with the law.
(h) [reserved]
(i) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(j) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(k) Beginning on the date hereof and ending on, and including, the date that is 90 days after the date of the Prospectus (the “Lock-Up Period”), without the prior written consent of RBC Capital Markets, LLC, the Issuer will not (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, 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 and the rules and regulations of the Commission promulgated thereunder, with respect to, any common stock of the Issuer or resulting from any delay in payingother securities of the Issuer that are substantially similar to its common stock, or any and all stampsecurities convertible into or exchangeable or exercisable for, excise, sales or any warrants or other taxes which may be payable rights to purchase, the foregoing, (ii) file or determined cause to become effective a registration statement under the Securities Act relating to the offer and sale of any common stock of the Issuer or any other securities of the Issuer that are substantially similar to its common stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, other than any registration statement on Form S-8 filed to register securities to be payable with respect to offered under any of the Pledged Collateral Issuer’s employee benefit or equity incentive plans disclosed in the Registration Statement; (iii) enter into any swap or other arrangement that transfers to another, in whole or in connection with part, any of the economic consequences of ownership of common stock of the Issuer or any other securities of the Issuer that are substantially similar to its common stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be settled by delivery of common stock of the Issuer or any other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares as contemplated by this Agreement, (B) issuances of common stock of the Issuer upon the conversion of securities or the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), Disclosure Package and the Prospectus, or (C) issuances of common stock of the Issuer (including pursuant to restricted stock awards, restricted stock units and upon the exercise of options) and grants of equity-based awards pursuant to any employee stock option plan, employee stock incentive plan, employee stock purchase plan, employee dividend reinvestment plan or any other employee benefit plan of the Issuer described in the Disclosure Package and the Prospectus.
(l) The Issuer will use its reasonable best efforts to list, subject to notice of issuance, the Shares on the NASDAQ Global Market.
(m) The Issuer has caused each officer and director to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Issuer or other capital stock of the Issuer, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of RBC Capital Markets, LLC (“Lockup Agreements”).
(n) The Issuer shall apply the net proceeds of its sale of the Shares in all material respects as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package and shall report with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act.
Appears in 1 contract
Covenants. The Pledgor Junior Creditor and the Company each hereby covenants that during severally covenant and warrant to Senior Creditor that, until the continuance of this AgreementTermination Date:
(a) it Subordinated Creditor shall warrant not be granted or take or hold, by way of direct grant from the Company or indirectly by way of assignment or otherwise, any Lien or other right or interest in any asset or property of the Company, whether now existing or hereafter arising, to secure all or any part of the Subordinated Debt, and defend its title except that nothing in this Agreement shall prohibit Subordinated Creditor from creating or perfecting a judgment Lien against assets of the Company which arises from a judgment obtained in a lawsuit permitted to be filed under this Agreement, but payment and collection of each such judgment or in respect of all such judgment Liens shall continue to be fully and unconditionally subordinated to the Pledged Collateral, Obligations as provided in this Agreement and the priority of all such judgment Liens shall continue to be fully and unconditionally subordinate and junior in right of priority and rank to and subordinated to any and all material rights and the Liens held or asserted by Bank One or any other Senior Creditor as security interest (including the priority thereof) for all or any part of the Pledgee conferred by this Agreement Obligations in and or to the Pledged Collateral, in each case at the cost any of the Pledgor against the claims and demands of all persons whomsoever;property or assets subject to such judgment Liens.
(b) No promissory note, instrument or other evidence of indebtedness has been or hereafter may be or will be issued by the Company to Subordinated Creditor, directly or indirectly, in connection with or to evidence any of the Subordinated Debt unless it shall contain in the body thereof a conspicuous statement or notation (in form and substance reasonably satisfactory to Senior Creditor) indicating that such instrument and the Subordinated Debt evidenced by it are subordinated to all of the Obligations and are subject to this Agreement.
(c) If the Company defaults on the Subordinated Debt or any portion thereof or if Subordinated Creditor accelerates the maturity of any of the Subordinated Debt, Subordinated Creditor shall give Bank One and any other Senior Creditor which has by written notice identified itself to Subordinated Creditor, written notice of the default or acceleration, as applicable, which written notice shall be given within seven (7) calendar days after Subordinated Creditor learns of each such default and within three (3) calendar days of the date Subordinated Creditor accelerates the maturity of any of the Subordinated Debt. However, except as permitted by the Intercreditor Agreement, regardless of the Company's default on any of the Subordinated Debt, Subordinated Creditor will not seek to foreclose, exercise any remedies as a secured party under the Uniform Commercial Code or other applicable law, or otherwise permitted realize upon any Lien or other security for all or any of the Subordinated Debt, and Subordinated Creditor shall have no right to foreclose, exercise such remedies as a secured party or otherwise realize on any such Lien or other security, until and unless the Foreclosure Date (as defined hereinafter) shall have occurred. The exercise of any power of attorney granted to Subordinated Creditor by the Company under or in this Agreement connection with any security agreement, mortgage, deed of trust or other Lien document shall constitute the Finance Documents, it exercise of remedies as a secured creditor and is therefor restricted as stated in the foregoing sentence.
(d) No guaranty of payment or collection or grant of any Lien shall not sell, assign, transfer, charge, pledge be obtained or encumber in held at any manner time by Subordinated Creditor as security for all or any part of the Pledged Collateral Subordinated Debt from any subsidiary or suffer to exist any encumbrance on affiliate of the Pledged CollateralCompany, other than Permitted Liens;
(c) it shall not take from except for the Company any undertaking or security in respect pledge by Obsidian Capital Partners, L.P. of its liability hereunder or in respect of any other liability the stock of the Company under and pursuant to that certain Stock Pledge Agreement dated December 29, 2000, executed by Obsidian Capital Partners, L.P. to secure the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;Subordinated Note.
(e) it shall give If at least 30 days’ prior written notice any time after a Default Notice is given and while such Default Notice is outstanding and not withdrawn, the Company, with the consent of Senior Creditor, elects to Pledgee sell any of any its assets or property for a reasonably equivalent value and for cash, with the entire cash proceeds of such sale (inet only of reasonable costs and expenses incurred by the Company to consummate such sale) change to be paid to Senior Creditor to be applied against outstanding Obligations and with a concurrent and corresponding permanent reduction in the amount of the location of Pledgor’s chief executive officeSenior Creditor's lending commitment, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it then Subordinated Creditor shall not provide a consent to such sale and payment and shall release and terminate any termination of Liens then held by Subordinated Creditor in the asset or amendment to property being sold concurrently with the Organizational Documents or other organizational documents closing of the Company sale (provided that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights any net cash proceeds from such sale which are in the Pledged Collateral, the validity, perfection or priority excess of the security interests of outstanding Obligations shall be paid to Subordinated Creditor for application against the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementSubordinated Debt).
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) it shall warrant Employee acknowledges that his relationship with the Company was one of high trust and defend its title confidence and that in the course of his service to the Pledged CollateralCompany Employee has had access to and contact with Proprietary Information. Employee covenants and agrees that Employee will not at any time disclose to others, and all material rights and or use for Employee’s benefit or the security interest benefit of others, any Proprietary Information. Employee’s obligations under this Section shall not apply to any information that (including i) is or becomes known to the priority thereof) general public under circumstances involving no breach by Employee of the Pledgee conferred terms of this Section, (ii) is generally disclosed to third parties by this Agreement in and to the Pledged CollateralCompany without restriction on such third parties, in each case at the cost (iii) is approved for release by written authorization of the Pledgor against board of directors of the claims and demands of all persons whomsoever;Company, (iv) is required to be disclosed by court order or other legal obligation, or (v) is disclosed to Employee’s legal counsel.
(b) except as otherwise permitted Employee covenants and agrees to keep all communications with the Company regarding the terms of this Agreement and any and all events, allegations, actions and circumstances relating to his separation from the Company in strictest confidence, provided, however, that the foregoing shall not prohibit Employee from informing any subsequent employer of post-employment restrictions under this Agreement or from disclosing the Finance Documentsterms hereof to his spouse, it shall not sellattorneys, assigntax or financial advisors and/or accountants as may be reasonably required, transferor from disclosing the terms hereof as may be required by subpoena or other legal obligation. Notwithstanding the foregoing, charge, pledge the parties acknowledge and agree that the Company is obligated to make this Agreement public by means of a Current Report on Form 8-K to be filed with the United States Securities and Exchange Commission (the “SEC”) and to file this Agreement as an exhibit to such report or encumber in any manner any part of to other periodic reports filed with the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;SEC.
(c) it Employee covenants and agrees that during the period commencing on the Termination Date and ending as of the Severance & Benefit End Date Employee shall not not, without the Company’s written consent, (i) establish, acquire more than 10% of, take from the Company any undertaking employment with, or security in respect of its liability hereunder take a consultancy with a Competing Business, or in respect of any other liability (ii) solicit then-active employees of the Company or its subsidiaries to exit the Company or one of its subsidiaries and take employment or a consultancy with a Competing Business. This provision shall not be construed to prohibit a then-active employee from independently responding to general advertisements or postings at or on behalf of the Competing Business. Employee acknowledges and agrees that the time, scope, geographic limitations, and other terms of this subsection are reasonable under the circumstances contemplated by this Agreement. If a court of competent jurisdiction determines that any of the terms contained in this subsection are unenforceable, they shall be construed to apply only to the Pledgor and the Pledgor shall not prove nor have the right of proofextent that they are enforceable, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;all as determined by such a court.
(d) it shall furnish Employee covenants and agrees to Pledgee from time to time statements and schedules further identifying and describing cooperate with the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any Company through the Severance & Benefit End Date by making himself available (i) change to testify on the Company’s behalf in any legal proceeding and to assist the Company by providing information and meeting with the Company’s counsel as reasonably requested and (2) to assist the Company and its personnel with matters relating to the Company’s financial and accounting functions, so long as neither of the location of Pledgor’s chief executive officeforegoing materially interferes with his then-current employment, (ii) change of Pledgor’s nameconsulting, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the samejob search, or cause an Event of Default vacation-commitments. The Company agrees to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and reimburse Employee for all liabilities with respect to, or resulting from any delay expenses approved in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or writing in advance that are incurred in connection with such testimony or other assistance. Employee agrees to make himself reasonably available to provide testimony or other assistance after the transaction contemplated by this AgreementSeverance & Benefit End Date (subject to constraints of then-current employment, consultancy, job-search, or vacation-commitments), and the Company agrees to reimburse Employee at the hourly rate of $175 per hour for such testimony or assistance.
Appears in 1 contract
Sources: Release and Severance Agreement (Environmental Power Corp)
Covenants. (a) The Pledgor hereby Company covenants and agrees with the several Underwriters that:
(i) The Company will:
(x) use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto to become effective as promptly as possible. If required, the Company will file the Prospectus or any Term Sheet that during constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Securities Act. During any time when a prospectus relating to the Shares is required to be delivered under the Securities Act, the Company (I) will comply with all requirements imposed upon it by the Securities Act and the rules and regulations of the Commission thereunder to the extent necessary to permit the continuance of this Agreement:
sales of or dealings in the Shares in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (aII) it shall warrant and defend its title will not file with the Commission the Prospectus, Term Sheet, any amendment or supplement to such Prospectus or Term Sheet, any amendment to the Pledged Collateral, and all material rights and the security interest Registration Statement (including the priority amendment referred to in the second sentence of Section 5(a)(i) hereof) or any Rule 462(b) Registration Statement unless the Representatives previously have been advised of, and furnished with a copy within a reasonable period of time prior to, the proposed filing and the Representatives shall have given their consent to such filing. The Company will prepare and file with the Commission, in accordance with the rules and regulations of the Commission, promptly upon request by the Representatives or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the several Underwriters. The Company will advise the Representatives, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus or Term Sheet or any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Representatives of each such filing or effectiveness;
(y) without charge, provide (I) to the Representatives and to counsel for the Underwriters, an executed and a conformed copy of the Original Registration Statement and each amendment thereto or any Rule 462(b) Registration Statement (in each case including exhibits thereto), (II) to each other Underwriter, a conformed copy of the Original Registration Statement and each amendment thereto or any Rule 462(b) Registration Statement (in each case without exhibits thereto), and (III) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. Without limiting the application of clause (III) of the Pledgee conferred preceding sentence, the Company, not later than (A) 9:00 A.M., New York City time, on the business day following the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 6:00 P.M., New York City time, on the business day following the date of determination of the public offering price, if such determination occurred after 12:00 noon, New York City time, on such date, will deliver to the Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Representatives may reasonably request for purposes of confirming orders that are expected to settle on the First Closing Date; and
(z) advise the Representatives, promptly after receiving notice or obtaining knowledge thereof, of (I) the issuance by this Agreement the Commission of any stop order suspending the effectiveness of the Original Registration Statement or any amendment thereto or any Rule 462(b) Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (II) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (III) the institution, threatening or contemplation of any proceeding for any purpose identified in the preceding clause (I) or (II), or (IV) any request made by the Commission for amending the Original Registration Statement or any Rule 462(b) Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(ii) The Company will arrange for the qualification of the Shares for offering and sale in each jurisdiction as the Representatives shall designate including, but not limited to, pursuant to applicable state securities ("BLUE SKY") laws of certain states of the United States of America or other U.S. jurisdictions, and the Company shall maintain such qualifications in effect for so long as may be necessary in order to complete the placement of the Shares; provided, however, that the Company shall not be obliged to file any general consent to service of process or to qualify as a foreign corporation or as a securities dealer in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(iii) If, at any time prior to the final date when a prospectus relating to the Shares is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with the Securities Act or the rules or regulations of the Commission thereunder or applicable law, the Company will promptly notify the Representatives thereof and will promptly, at its own expense, but subject to Section 3(a)(i)(x)(II) hereof: (x) prepare and file with the Commission an amendment to the Registration Statement or amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance, and (y) supply any amended Registration Statement or amended or supplemented Prospectus to the Underwriters in such quantities as the Underwriters may reasonably request.
(iv) The Company will make generally available to the Company's securityholders and to the Pledged CollateralRepresentatives as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act, including Rule 158 thereunder.
(v) The Company will apply the net proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(vi) The Company will not, and will not allow any subsidiary to, publicly announce any intention to, and will not itself, and will not allow any subsidiary to, without the prior written consent of Deutsche Bank Securities Inc., on behalf of the Underwriters, (x) offer, pledge, sell, offer to sell, contract to sell, sell any option or contract to purchase, purchase any option to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, Common Stock, or (y) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Common Stock (whether any such transaction described in clause (x) or (y) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise), for a period beginning from the date hereof and continuing to and including the date 90 days after the date hereof, except pursuant to this Agreement and other than with respect to (A) shares of Common Stock to be issued upon the exercise of warrants to purchase shares of Common Stock, or upon conversion or exchange of securities convertible or exchangeable into shares of Common Stock, in each case at case, which are outstanding on the cost date hereof and disclosed in the Prospectus, and (B) shares of Common Stock (or any securities convertible into or exchangeable for shares of Common Stock) issued pursuant to any employee benefit plans, qualified stock option plans or other employee compensation plans which are disclosed in the Prospectus.
(vii) Neither the Company nor any of its affiliates, nor any person acting on behalf of any of them will, directly or indirectly, (x) take any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect price of any other liability security of the Company to facilitate the Pledgor sale or resale of the Shares or (y) either (I) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Shares or (II) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(viii) The Company will (A) obtain the Lock-up Agreements described in Section 7(h) hereof from the persons indicated in such Section prior to the First Closing Date, (B) enforce the terms of each Lock-up Agreement, (C) issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-up Agreement and (D) upon written request of Deutsche Bank Securities Inc., release from the Pledgor shall Lock-up Agreements those shares of Common Stock held by those holders set forth in such request. In addition, except with the prior written consent of Deutsche Bank Securities Inc., the Company agrees (x) not prove nor to amend or terminate, or waive any right under, any Lock-up Agreement, or take any other action that would directly or indirectly have the same effect as an amendment or termination, or waiver of any right under, any Lock-up Agreement, that would permit any holder of proofshares of Common Stock, or any securities convertible into, or exercisable or exchangeable for, Common Stock, to (I) offer, pledge, sell, offer to sell, contract to sell, sell any option or contract to purchase, purchase any option to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, such shares of Common Stock or other securities, or (II) enter into any swap or other agreement that transfers, in competition with whole or in part, any of the Pledgeeeconomic consequences of ownership of such shares of Common Stock or other securities, and (y) not to consent to any sale, short sale, grant of an option for the purchase of, or other disposition or transfer of shares of Common Stock, or securities convertible into or exercisable or exchangeable for Common Stock, which are subject to a Lock-up Agreement.
(ix) If at any monies whatsoever owing time during the 25-day period after the Registration Statement becomes effective or during the period prior to any Closing Date, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' sole judgment the market price of the Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after notice from the Representatives advising the Company to the Pledgoreffect set forth above, in any insolvency forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or liquidationother public statement reasonably satisfactory to the Representatives, responding to or analogous proceedings under any applicable lawcommenting on such rumor, of the Pledgor;publication or event.
(dx) it If the Company elects to rely on Rule 462(b), the Company shall furnish to Pledgee from time to time statements both file the Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and schedules further identifying and describing pay the Pledged Collateral as Pledgee reasonably requests, all applicable fees in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor accordance with Rule 111 promulgated under the laws Securities Act by the earlier of another jurisdiction, in each case from (x) 10:00 P.M. New York City time on the information specified in Part B date of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement and (y) the time confirmations are sent or any other Finance Document or their ability to exercise the samegiven, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated as specified by this Agreement.Rule 462(b)
Appears in 1 contract
Sources: Underwriting Agreement (Dolphin Inc)
Covenants. (a) Covenants of the Bond Issuer. The Pledgor hereby Bond Issuer covenants that during and agrees with the continuance of this Agreementseveral Underwriters that:
(ai) it shall warrant The Bond Issuer will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and defend its title any amendment thereto, to become effective. Prior to the Pledged Collateraltermination of the offering of the Bonds, and all material rights and the security interest Bond Issuer will not file any amendment of the Registration Statement or supplement (including the priority thereofFinal Prospectus or any Preliminary Final Prospectus) to the base prospectus unless the Bond Issuer has furnished to you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Bond Issuer will cause the Final Prospectus, properly completed in a form approved by you, and any supplement thereto to be filed with the SEC pursuant to the applicable paragraph of Rule 424(b) within the prescribed period and will provide evidence satisfactory to the Representative of such timely filing. During the period from the Execution Time until the time when a prospectus relating to the Bonds is no longer required to be delivered under the Act, the Bond Issuer will promptly advise the Representative (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the SEC pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Bonds, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the SEC for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the Pledgee conferred issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (vi) of the receipt by the Bond Issuer of any notification with respect to the suspension of the qualification of the Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bond Issuer will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Bonds is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Bond Issuer promptly will (i) prepare and file with the SEC, subject to the second sentence of paragraph (a)(i) of this Agreement Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemented prospectus to you in such quantities as you may reasonably request.
(iii) As soon as practicable but no later than 18 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), the Bond Issuer will make generally available to the holders of the Bonds and to the Pledged CollateralRepresentative an earnings statement or statements of the Bond Issuer which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(iv) The Bond Issuer will furnish to each of the Representative and counsel for the Underwriters, without charge, one executed copy of the Registration Statement and of the Form T-1 (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representative may reasonably request. The Final Prospectus shall be delivered to the Representative prior to 10:00 a.m. (New York City time) on the second business day succeeding the Execution Date. The Bond Issuer shall cause the proceeds of the issuance and sale of the Bonds to be applied for the purposes described in the Final Prospectus and shall comply with Rule 463 under the Act. The Bond Issuer will pay the expenses of printing or other production of all documents relating to the offering.
(v) The Bond Issuer will arrange for the qualification of the Bonds for sale under the laws of such jurisdictions as the Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the Bonds and will arrange for the determination of the legality of the Bonds for purchase by institutional investors; provided, that in no event shall the Bond Issuer be obliged 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 Bonds, in each case at any jurisdiction where it is not now so subject.
(vi) Until 90 days after the cost Closing Date, the Bond Issuer will not, without the written consent of the Pledgor against Representative, offer, sell or contract to sell, participate in the claims sale or offering of, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities of a trust or other special purpose vehicle (other than the Bonds).
(vii) For a period from the date of this Agreement until the retirement of the Bonds, or until such time as no Underwriter acts as a market-maker in the Bonds, whichever occurs first, the Bond Issuer will deliver to the Representative the annual statements of compliance and demands the annual independent auditor's servicing report furnished to the Bond Issuer or the Indenture Trustee pursuant to the Servicing Agreement or the Indenture, as applicable, as soon as such statements and report are furnished to the Bond Issuer or the Indenture Trustee.
(viii) So long as any of the Bonds are outstanding, or until such time as no Underwriter acts as a market-maker in the Bonds, whichever occurs first, the Bond Issuer will furnish to the Representative (i) as soon as available, a copy of each report filed by it with the SEC under the Exchange Act, or mailed to Holders of the Bonds, (ii) a copy of any filings with the BPU pursuant to the Financing Order, and (iii) from time to time, any information concerning JCP&L or the Bond Issuer, as the Representative may reasonably request.
(ix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(k) hereof is conditioned upon the furnishing of documents or the taking of other actions by the Bond Issuer on or after the Closing Date, the Bond Issuer shall furnish such documents and take such other actions.
(x) The Bond Issuer will file with the SEC a report on Form 8-K setting forth all persons whomsoever;Computational Materials and ABS Term Sheets (as such terms are hereinafter defined) provided to the Bond Issuer by any Underwriter and identified by it as such within the time period allotted for such filing pursuant to the No-Action Letters (as hereinafter defined); provided, however, that, prior to any filing of the Computational Materials and ABS Term Sheets by the Bond Issuer, such Underwriter must comply with its obligations pursuant to Section 6 hereof, and the Bond Issuer must receive, prior to the Closing, a letter from PricewaterhouseCoopers LLP, certified public accountants, satisfactory in form and substance to the Bond Issuer and such Underwriter, to the effect that such accountants have performed specified procedures, all of which have been agreed to by the Bond Issuer and such Underwriter, as a result of which they have determined that the information included in the Computational Materials and ABS Term Sheets (if any), provided by such Underwriter to the Bond Issuer for filing on Form 8-K pursuant to said Section 6 and this Section 5(a)(x), and which the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Bond Issuer and such Underwriter to be material. The Bond Issuer shall file any corrected Computational Materials or ABS Terms Sheets described in Section 6(a)(iv) hereof as soon as practicable following receipt thereof.
(b) except as otherwise permitted in this Agreement or Covenants of JCP&L. JCP&L covenants and agrees with the Finance Documentsseveral Underwriters that, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and extent that the Pledgor shall Bond Issuer has not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company already performed such act pursuant to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Section 5(a) hereof:
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change JCP&L will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. JCP&L will use its best efforts to prevent the issuance by the SEC of any stop order suspending the effectiveness of the location Registration Statement and, if issued, to obtain as soon as possible the withdrawal thereof.
(ii) JCP&L will cause the proceeds of Pledgor’s chief executive officethe issuance and sale of the Bonds to be applied for the purposes described in the Final Prospectus.
(iii) Until 90 days after the Closing Date, JCP&L will not, without the written consent of the Representative, offer, sell or contract to sell, participate in the sale or offering of, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities of a trust or other special purpose vehicle (other than the Bonds).
(iv) So long as any of the Bonds are outstanding, or until such time as no Underwriter acts as a market-maker in the Bonds, whichever occurs first, and JCP&L is the Servicer, JCP&L will furnish to the Representative (i) as soon as available, a copy of each report of JCP&L filed with the SEC under the Exchange Act, or mailed to holders of the Bonds, (ii) change a copy of Pledgor’s nameany filings with the BPU pursuant to the Financing Order, identity or structure or and (iii) reorganization from time to time, any information concerning JCP&L and the Bond Issuer, as the Representative may reasonably request.
(v) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(k) hereof is conditioned upon the furnishing of documents or reincorporation the taking of Pledgor other actions by JCP&L on or after the Closing Date, JCP&L shall furnish such documents and take such other actions.
(vi) If, at any time when a prospectus relating to the Bonds is required to be delivered under the laws Act, any event occurs as a result of another jurisdictionwhich the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, in each case or if, during the period from the information specified in Part B of Schedule 1;
(f) Execution Time until the time when a prospectus relating to the Bonds is no longer required to be delivered under the Act, it shall not consent be necessary to any termination of amend the Registration Statement or amendment supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, JCP&L promptly will (i) prepare and file with the SEC, subject to the Organizational Documents second sentence of paragraph (a)(i) of this Section 5, an amendment or other organizational documents of supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemented prospectus to the Company that could Representative in such quantities as the Representative may reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementrequest.
Appears in 1 contract
Sources: Underwriting Agreement (Jcp&l Transition Funding LLC)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) Each Noteholder Party covenants and agrees that neither it shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) nor any applicable Holder will sell any of the Pledgee conferred New Notes to be received by it or them pursuant to this Agreement in unless such sale has been registered under the Securities Act and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;applicable state securities laws or an exemption from registration is available for such sale.
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, The Issuer will be responsible for payment of any transfer, chargedocumentary, pledge court, stamp or encumber in any manner any part similar taxes (“Transfer Taxes”) imposed with respect to the exchange of the Pledged Collateral or suffer Exchanged Notes, except (i) to exist any encumbrance on the Pledged Collateral, extent attributable to the Noteholder Party instructing the Issuer to register the New Notes in the name of a person other than Permitted Liens;the applicable Holder, in which case the Noteholder Party will be responsible for the payment of any Transfer Taxes imposed with respect to the exchange of the Exchanged Notes or (ii) to the extent imposed for any reason other than the transfer of the Exchanged Notes to the Issuer in exchange for the New Notes.
(c) it The Issuer shall not take from be entitled to deduct and withhold such amounts as are required to be deducted and withheld under applicable U.S. federal, state, local and foreign tax law (including U.S. federal backup withholding) with respect to the Company transactions contemplated by this Agreement. To the extent any undertaking or security amounts are so deducted and withheld and paid over to the applicable taxing authority, such amounts shall be treated for all purposes of this Agreement as having been made to the person in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor whom such deduction and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;withholding was made.
(d) Each Noteholder Party and each Holder, as applicable, covenants and agrees that it shall furnish shall, upon request, promptly execute and deliver any additional documents reasonably deemed by Issuer to Pledgee from time be necessary or desirable to time statements complete the Exchange; provided that such additional documents are consistent with the terms hereof and schedules further identifying and describing do not include any additional liabilities or obligations of any of the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;Noteholder Parties or the Holders without each Noteholder Party’s prior written consent.
(e) it On or before 9:30a.m., New York City time, on the business day after the date hereof, the Issuer shall give at least 30 days’ prior written notice to Pledgee disclose all material terms of any (i) change this Agreement, the New Indenture, the New Notes and the Issuer’s fourth quarter and fiscal year 2024 preliminary results and first quarter and fiscal year 2025 guidance shared with certain of the location Noteholder Parties, through the distribution of Pledgor’s chief executive office, (ii) change a press release via a widely circulated news or wire service or the filing of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation a Current Report on Form 8-K with the SEC. The Issuer agrees that none of Pledgor under the laws of another jurisdiction, in each case from the information specified conveyed to the Noteholder Parties and Holders in Part B connection with the Exchange or otherwise will constitute material nonpublic information of Schedule 1;the Issuer or its securities upon distribution of such press release and/or the filing of such Current Report on Form 8-K.
(f) The Issuer agrees that it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights execute and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the samedeliver, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee frombe executed and delivered, such other documents, instruments and agreements, and hold it harmless againsttake such other actions, including giving any and all liabilities with respect tofurther assurances, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which as the Noteholder Parties may be payable or determined to be payable with respect to any of the Pledged Collateral or reasonably request in connection with the transaction transactions contemplated by this Agreementhereby.
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer covenants and agrees with the several Underwriters that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations a Prospectus in a form approved by this Agreement the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430B of the Rules and Regulations; (ii) not file any amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which RBC Capital Markets Corporation shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in each case at writing or which is not in compliance with the cost Rules and Regulations; and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Pledgor against Prospectus and prior to the claims and demands termination of all persons whomsoever;the offering of the Shares by the Underwriters.
(b) except as otherwise permitted The Issuer has not distributed, and without the prior consent of RBC Capital Markets Corporation will not distribute, any prospectus or other offering material (including, without limitation, any offer relating to the Shares that would constitute a Free Writing Prospectus and content on the Issuer’s website that may be deemed to be a prospectus or other offering material) in this Agreement or connection with the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part offering and sale of the Pledged Collateral or suffer to exist any encumbrance on the Pledged CollateralShares, other than Permitted Liens;the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made, and without the prior consent of the Issuer and RBC Capital Markets Corporation will not make, any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing prospectus, the use of which has been consented to by the Issuer and RBC Capital Markets Corporation, is listed on Schedule II(a) or Schedule II(b) hereto. The Issuer has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required, and legending. The Issuer represents that it has satisfied, and agrees that it will satisfy, the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to RBC Capital Markets Corporation and, if requested by RBC Capital Markets Corporation, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Issuer by an Underwriter through RBC Capital Markets Corporation expressly for use therein.
(c) it shall The Issuer will not take from take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the Company any undertaking stabilization or security in respect manipulation of its liability hereunder or in respect the price of any other liability securities of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Issuer.
(d) it shall furnish The Issuer will advise the Representatives promptly (i) of any notice from the Commission objecting to Pledgee from time the use of the form of the Registration Statement or any post-effective amendment thereto (ii) of any request of the Commission for amendment of the Registration Statement or for supplement to time statements the Prospectus or for any additional information; and schedules further identifying (iii) of the issuance by the Commission of any stop order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or of the institution of any proceedings for that purpose. The Issuer will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and describing to obtain as soon as possible the Pledged Collateral as Pledgee reasonably requestslifting thereof, all in reasonable detail;if issued.
(e) The Issuer will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Issuer shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it shall give at least 30 days’ prior written notice is not now so qualified or required to Pledgee of any (i) change file such a consent. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Shares.
(f) it shall not consent The Issuer will deliver to, or upon the order of, the Representative, from time to time, as many copies of any termination Preliminary Prospectus as the Representative may reasonably request. The Issuer will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or amendment as thereafter amended or supplemented, as the Representative may reasonably request. The Issuer will deliver to the Organizational Documents Representative at or other organizational documents before the Closing Date, four signed copies of the Company Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that could may reasonably be expected to adversely affect requested) and of all amendments thereto, as the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andRepresentative may reasonably request.
(g) it shall indemnify The Issuer will comply with the Pledgee fromSecurities Act and the Rules and Regulations, and hold it harmless againstthe Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Issuer promptly will prepare and all liabilities file with respect tothe Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or resulting from so that the Prospectus will comply with the law.
(h) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in any delay event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in payingreasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(i) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and all stampthe Prospectus.
(j) The Issuer covenants and agrees that no offering, excisesale, sales short sale or other taxes disposition of any shares of Common Stock of the Issuer or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Issuer otherwise than hereunder or with the prior written consent of RBC Capital Markets Corporation; provided, that this provision will not restrict the Issuer from awarding options to purchase its Common Stock or restricted shares of its Common Stock pursuant to employee benefit plans as described in the Prospectus and the Disclosure Package.
(k) The Issuer will use its best efforts to list, subject to notice of issuance, the Shares on The Nasdaq Global Select Stock Market.
(l) The Issuer has caused each officer and director and specific shareholders of the Issuer to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which may be payable each such person shall agree not to offer, sell, sell short or determined otherwise dispose of any shares of Common Stock of the Issuer or other capital stock of the Issuer, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to be payable which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of RBC Capital Markets Corporation (“Lockup Agreements”).
(m) The Issuer shall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package and shall report with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act.
(n) The Issuer shall not invest, or otherwise use the proceeds received by the Issuer from its sale of the Shares in such a manner as would require the Issuer or any of the Pledged Collateral or in connection with Subsidiaries to register as an investment company under the transaction contemplated by this Agreement▇▇▇▇ ▇▇▇.
(o) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
Appears in 1 contract
Sources: Equity Underwriting Agreement (Washington Banking Co)
Covenants. A. The Pledgor hereby Company The Company covenants that during and agrees with the continuance of this AgreementDealer Manager that:
2.1 It will, at no expense to the Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement, including all amendments and exhibits thereto, as the Dealer Manager may reasonably request. It will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the offering of the Shares of: (a) it shall warrant the Prospectus and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) every form of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
supplemental or amended prospectus; (b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
Agreement; and (c) it shall not take from any other printed sales literature or other materials (provided that the use of said sales literature and other materials has been first approved for use by the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of and all appropriate regulatory agencies).
2.2 It will furnish such information and execute and file such documents as may be necessary for the Company to qualify the Pledgor Shares for offer and sale under the securities laws of such jurisdictions as the Dealer Manager may reasonably designate and will file and make in each year such statements and reports as may be required. The Company will furnish to the Dealer Manager a copy of such papers filed by the Company in connection with any such qualification.
2.3 It will: (a) furnish copies of any proposed amendment or supplement of the Registration Statement or the Prospectus to the Dealer Manager; (b) file every amendment or supplement to the Registration Statement or the Prospectus that may be required by the SEC or any state securities administration; and (c) if at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement or any state securities administration shall issue any order or take other action to suspend or enjoin the sale of the Shares, it will promptly notify the Dealer Manager and will use its best efforts to obtain the lifting of such order or to prevent such other action at the earliest possible time.
2.4 If at any time when a Prospectus is required to be delivered under the Securities Act any event occurs as a result of which, in the opinion of either the Company or the Dealer Manager, the Prospectus or any other prospectus then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in view of the circumstances under which they were made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and will effect the preparation of an amended or supplemental prospectus which will correct such statement or omission.
2.5 It will comply with all requirements imposed upon it by the Securities Act and the Pledgor shall not prove nor have Exchange Act, by the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, rules and regulations of the Pledgor;
(d) it shall furnish to Pledgee SEC promulgated thereunder as from time to time statements in effect, and schedules further identifying by all state securities laws and describing the Pledged Collateral as Pledgee reasonably requests, all regulations of those states in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change which an exemption has been obtained or qualification of the location Shares has been effected, to permit the continuance of Pledgor’s chief executive officeoffers and sales of the Shares in accordance with the provisions hereof and of the Prospectus.
2.6 It will pay all expenses incident to the performance of its obligations under this Agreement, including (a) the preparation, filing and printing of the Registration Statement as originally filed and of each amendment thereto, (iib) change of Pledgor’s namethe preparation, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment printing and delivery to the Organizational Documents or other organizational documents Dealer Manager of the Company that could reasonably be expected to adversely affect the Pledged Collateralthis Agreement, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights Selected Dealer Agreement and remedies of the Pledgee under this Agreement or any such other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which documents as may be payable or determined to be payable with respect to any of the Pledged Collateral or required in connection with the transaction contemplated offering, sale, issuance and delivery of the Shares, (c) the fees and disbursements of the Company’s counsel, accountants and other advisors, (d) the fees and expenses related to the review of the terms and fairness of the Offering by this Agreementthe NASD; (e) the fees and expenses related to the qualification of the Shares under securities laws in accordance with the provisions of Section 2.2 hereof, including the fees and disbursements of counsel in connection with the preparation of the Blue Sky Survey and any supplement thereto, (f) the printing and delivery to the Dealer Manager of copies of any Preliminary Prospectus, the Prospectus and any amendments or supplements thereto, (g) the fees and expenses of any registrar, transfer agent or paying agent in connection with the Shares and (h) the costs and expenses of the Company relating to investor presentations undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the production of slides and graphics, fees and expenses of any consultants engaged in connection with presentations with the prior approval of the Company, and travel and lodging expenses of the representatives of the Company and any such consultants.
Appears in 1 contract
Sources: Dealer Manager Agreement (Wells Real Estate Investment Trust Ii Inc)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this AgreementUnderwriters that:
(a) it shall warrant If the Registration Statement has not yet been declared effective on the date of this Agreement, the Company will use its best efforts to cause the Registration Statement and defend its title any amendments thereto to become effective as promptly as practicable, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence reasonably satisfactory to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) Representative of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;such timely filing.
(b) except If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act, any event shall have occurred as otherwise permitted a result of which the Preliminary Prospectus or Prospectus as then amended or supplemented would, in this Agreement the judgment of the Representative or the Finance DocumentsCompany, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall not sellbe necessary at any time to amend or supplement the Preliminary Prospectus, assignthe Prospectus or the Registration Statement to comply with the Securities Act or the Securities Act Regulations, transfer, charge, pledge the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or encumber supplement (in form and substance satisfactory to the Representative) that will correct such statement or omission and will use all reasonable efforts to have any manner any part of amendment to the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;Registration Statement declared effective as soon as possible.
(c) it shall not take from The Company will promptly deliver to the Representative two signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company any undertaking or security in respect will promptly deliver to the Underwriters such number of its liability hereunder or in respect copies of any other liability Preliminary Prospectus, the Prospectus, the Registration Statement, any Issuer Free Writing Prospectuses and all amendments of and supplements to such documents, if any, as the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Representative may reasonably request.
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change The Company will furnish a copy of each proposed free writing prospectus to the Representative and counsel for the Underwriters and obtain the consent of the location of Pledgor’s chief executive officeRepresentative prior to referring to, (iiusing or filing with the Commission any free writing prospectus pursuant to Rule 433(d) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementSecurities Act.
Appears in 1 contract
Sources: Underwriting Agreement (InterMetro Communications, Inc.)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) it Upon the Public Offering (as defined in the Note), if the Company determines (upon advice of outside legal counsel) that a filing is or may be required under applicable law in connection with the transactions contemplated hereunder, the Company shall warrant use reasonable best efforts, and defend its title the Purchaser shall reasonably cooperate with the Company’s efforts, to promptly prepare and file all necessary documentation and to effect all applications that are necessary or advisable under applicable law with respect to the Pledged Collateral, and all material rights and transactions contemplated hereunder so that any applicable waiting period shall have expired or been terminated as soon as practicable after the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;date hereof.
(b) The Purchaser shall not (except as otherwise permitted in to the extent required by applicable law, legal process or the rules and regulations of any national securities exchange) issue any public announcement, statement or other disclosure with respect to this Agreement or the Finance Documentstransactions contemplated hereby without the prior consent of the Company, it which consent shall not sellbe unreasonably withheld, assignconditioned or delayed. The Company shall not (except to the extent required by applicable law, transferlegal process or the rules and regulations of any national securities exchange or, chargesubject to the provisions of Section 6(e) of this Agreement, pledge in the Resale Registration Statement) issue any public announcement, statement or encumber in any manner any part other disclosure with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Pledged Collateral Purchaser, which consent shall not be unreasonably withheld, conditioned or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;delayed.
(c) it shall not take from So long as the Purchaser owns any of the Shares, the Company any undertaking or security in respect will use its reasonable best efforts to maintain the quotation of its liability hereunder Common Stock on an exchange operated by the Nasdaq Stock Market, LLC or another “national securities exchange” under Section 6 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and will comply in respect all material respects with the Company’s reporting, filing and other obligations under the rules of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proofsuch market or exchange, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;as applicable.
(d) it The Company (i) shall furnish to Pledgee not, so long as the Note remains outstanding, (A) increase the Revolving Line (as that term is therein defined in the Loan and Security Agreement dated as of December 14, 2023 and as amended from time to time statements by and schedules further identifying between the Company and describing East West Bank (the Pledged Collateral “EWB Agreement”)) in excess of the amount in effect on the date hereof or (B) incur, maintain, carry or guarantee or otherwise have any obligation (1) to repay any indebtedness for borrowed money, other than indebtedness under the EWB Agreement permitted under clause (A) above, or (2) under any finance lease, other than any finance lease to acquire new property secured by such newly acquired property, which in each case of the foregoing clauses (1) and (2) is not expressly subordinated to the Company’s obligations under the Note, and (ii) shall, as Pledgee reasonably requestsof immediately prior to the consummation of the Public Offering, all ensure a sufficient number of authorized but unissued shares of Common Stock are available under its certificate of incorporation to permit the conversion of the Note in reasonable detail;accordance with its terms.
(e) it At all times while the Note remains outstanding, the Purchaser shall give at least 30 days’ prior written notice be entitled to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case receive from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment Company, but only upon the Purchaser’s express written request, quarterly unaudited and annual audited financial statements, monthly and other financial reports presented to the Organizational Documents Company’s board of directors, any requests for action by the Company’s stockholders or actions taken by written consent taken by the Company’s stockholders, and such other organizational documents information relating to the financial condition, business, prospects, or corporate affairs of the Company as the Purchaser may request in writing from time to time (and that could does not directly relate to information concerning any competitor of the Purchaser); provided, however, that (a) prior to the date that is 90 days following the date of this Agreement, the Company shall not be obligated to provide the Purchaser with any such information other than quarterly unaudited and annual audited financial statements, and (b) the Company shall not be obligated hereunder to provide information the disclosure of which would reasonably be expected to adversely affect the Pledged Collateralattorney-client privilege between the Company and its legal counsel. The Company agrees that it will not provide the Purchaser with any information subject to the provisions of this Section 5(e) except upon the written request of the Purchaser.
(f) At all times while the Note remains outstanding, the Pledgor’s rights in Company shall provide the Pledged Collateral, the validity, perfection Purchaser with reasonably detailed written notice of any sale process or priority acquisition offer regarding a material portion of any of the security Company’s or the Operating Subsidiary’s equity interests or assets, including the material terms thereof, and a reasonable opportunity to participate in such sale process (on the same general terms and timelines as other relevant parties) or make a counter-offer with respect to such acquisition offer. The Company shall not be required to name or provide any information which would reasonably be expected to reveal the identity of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause third-party making an Event of Default to occur; andacquisition offer.
(g) it shall indemnify Upon demand by the Pledgee fromPurchaser, and hold it harmless againstreceipt of a summary invoice therefor with wire instructions, any the Company shall pay the fees and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any expenses of the Pledged Collateral or Purchaser’s outside legal counsel incurred in connection with the transaction contemplated by this Agreement, the Note and the transactions contemplated hereby, in an amount not to exceed, in the aggregate, $100,000 (One Hundred Thousand Dollars).
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Silvaco Group, Inc.)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this Agreementseveral Underwriters as follows:
(a) If the Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective or any supplement to the Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will prepare and file a Prospectus (or term sheet within the meaning of Rule 434 of the Rules and Regulations) containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Securities Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b); the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) that, in your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to which you shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise you, promptly after it shall warrant receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and defend the Company will promptly use its title best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) relating to the Pledged CollateralSecurities is required to be delivered under the Securities Act, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof and the Prospectus. If during such period any event occurs as a result of which the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus to comply with the Securities Act, the Company will promptly notify you and will amend the Registration Statement or supplement the Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company shall cooperate with you to qualify the Securities for sale under the securities laws of such jurisdictions as you reasonably designate or as is necessary to effect the distribution of the Reserved Shares and to continue such qualifications in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.
(e) The Company will furnish to the Underwriters and counsel for the Underwriters copies of the Registration Statement (three of which will be signed and will include all consents and exhibits filed therewith), each Preliminary Prospectus, the Prospectus, and all material rights amendments and the security interest supplements (including any term sheet within the priority thereof) meaning of Rule 434 of the Pledgee conferred by this Agreement in Rules and Regulations) to the Pledged Collateralsuch documents, in each case at as soon as available and in such quantities as you may from time to time reasonably request; provided, however, that the cost expense of the Pledgor against preparation and delivery of any prospectus required for use nine (9) months or more after the claims effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(f) During a period of three years commencing with the date hereof, the Company will furnish to the Representatives, and demands to each Underwriter who may so request in writing, copies of all persons whomsoever;periodic and special reports furnished to the stockholders of the Company and all information, documents and reports filed with the Commission, the National Association of Securities Dealers, Inc., Nasdaq or any securities exchange (other than any such information, documents and reports that are filed with the Commission electronically via ▇▇▇▇▇ or any successor system).
(bg) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the effective date of the Registration Statement that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is prevented from becoming effective under the provisions of Section 9(a) hereof or is terminated, will pay or cause to be paid (i) all expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the delivery to the Underwriters of the Securities, (ii) all expenses and fees (including, without limitation, fees and expenses of the Company’s accountants and counsel but, except as otherwise permitted provided below, not including fees of the Underwriters’ counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, each Preliminary Prospectus, the Prospectus, and any amendment thereof or supplement thereto, and the printing, delivery, and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions), (iii) all stamp duties or other taxes, if any, incurred by the Finance DocumentsUnderwriters in connection with the Directed Share Program, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part (iv) all filing fees and fees and disbursements of the Pledged Collateral Underwriters’ counsel incurred in connection with the qualification of the Securities for offering and sale by the Underwriters or suffer by dealers under the securities or blue sky laws of the states and other jurisdictions which you shall designate or are necessary to exist distribute the Reserved Shares, (v) the fees and expenses of any encumbrance transfer agent or registrar, (vi) the filing fees incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities, (vii) listing fees, if any, and (viii) all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein; provided, however, that the Underwriters (x) shall bear their own expenses for travel and lodging, (y) shall bear the Company’s expenses for any non-commercial travel, and (z) shall advance the Company’s expenses for commercial travel and lodging (subject to full reimbursement by the Company whether or not the sale of Securities provided for herein is consummated), all in connection with the investor presentations on any “road show” undertaken in connection with the marketing and/or offering of the Securities. If the sale of the Securities provided for herein is not consummated by reason of any failure, refusal or inability on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability part of the Company to perform any agreement on its part to be performed, or because any other condition of the Pledgor and Underwriters’ obligations hereunder required to be fulfilled by the Pledgor Company is not fulfilled, unless directly attributable to the default of any Underwriter, the Company will reimburse the several Underwriters for fifty percent (50%) of the Company’s non-commercial travel expenses as previously agreed among the parties. The Company shall not prove nor have in any event be liable to any of the right Underwriters for loss of proofanticipated profits from the transactions covered by this Agreement. For clarification purposes, as a result of this Section 4(h), in competition with the Pledgeeevent that the transactions contemplated hereunder are not consummated or this Agreement is prevented from becoming effective under the provisions of Section 9(a) hereof or is terminated, for any monies whatsoever owing from the Company will be required to reimburse the PledgorUnderwriters for no more than the out-of-pocket expenses incurred by the Underwriters; provided, in any insolvency or liquidationhowever, or analogous proceedings under any applicable law, of the Pledgor;that such out-of-pocket expenses shall be limited as described above.
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change The Company will apply the net proceeds from the sale of the location Securities to be sold by it hereunder for the purposes set forth in the Prospectus and will file such reports with the Commission with respect to the sale of Pledgor’s chief executive officethe Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 of the Rules and Regulations.
(j) The Company will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., from the date of execution of this Agreement and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”) offer for sale; sell; contract to sell; pledge; grant any option for the sale of; or otherwise issue or dispose of, directly or indirectly (or publicly disclose the intention to make any such offer, sale, pledge, grant, issuance or other disposition), any Common Stock or any securities convertible into or exchangeable for, or any options or rights to purchase or acquire, Common Stock, except (i) to the Underwriters pursuant to this Agreement, (ii) change of Pledgor’s namein the ordinary course to employees, identity directors or structure consultants pursuant to its 2003 Amended and Restated Stock Incentive Plan or to eligible employees pursuant to its 2004 Employee Stock Purchase Plan, (iii) reorganization for the issuance of shares of convertible preferred stock and debentures upon exchange thereof as contemplated by the Registration Statement, and (iv) in connection with the acquisition of any businesses, assets or reincorporation technologies provided that the recipients of Pledgor such securities agree not to transfer them during the Lock-Up Period. The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period.
(k) The Company either has caused to be delivered to you or will cause to be delivered to you prior to the effective date of the Registration Statement a letter from each of the Company’s directors, officers and certain stockholders as mutually agreed between the parties stating that such person agrees that he or she will not, without your prior written consent, offer for sale, sell, contract to sell or otherwise dispose of, as set forth in such letter, any shares of Common Stock or rights to purchase Common Stock, except to the Underwriters pursuant to this Agreement, for a period of 90 days after commencement of the public offering of the Securities by the Underwriters (the “Lock-Up Agreement”). The Company will enforce the terms of each Lock-Up Agreement and issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;applicable Lock-Up Agreement.
(fl) it shall The Company has not consent taken and will not take, directly or indirectly, any action designed to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could which might reasonably be expected to adversely affect the Pledged Collateralcause or result in, or which has constituted, the Pledgor’s rights stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and has not effected any sales of Common Stock which are required to be disclosed in response to Item 701 of Regulation S-B under the Securities Act which have not been so disclosed in the Pledged CollateralRegistration Statement.
(m) During the period of three years after the date hereof, the validityCompany will use its best efforts to file with the Commission such periodic and special reports as required by the Rules and Regulations.
(n) The Company and its subsidiaries will maintain such controls and other procedures, perfection or priority including without limitation those required by Sections 302 and 906 of the security interests ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to the Company, including its subsidiaries, is made known to them by others within those entities.
(o) The Company and its subsidiaries will comply with all effective applicable provisions of the Pledgee ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act to which the Company will be, at such time, required to be in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andcompliance.
(gp) it shall indemnify The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or Reserved Shares are offered in connection with the transaction contemplated by this AgreementDirected Share Program.
Appears in 1 contract
Sources: Purchase Agreement (Marchex Inc)
Covenants. The Pledgor hereby covenants that MIDAS, during the continuance of this Agreement:
(a) it shall warrant and defend its title to period between the Pledged Collateral, and all material rights date hereof and the security interest (including the priority thereof) of the Pledgee conferred Closing Date, except as expressly contemplated by this Agreement or otherwise consented to by MARELLI in and writing, agrees to the Pledged Collateralfollowing.
4.1 The Midas Companies shall be conducted only in the ordinary course of business and in accordance with past practices, which were in each case at accordance with the cost law, prudent and customary in all material respects under the circumstances, and no liability unrelated to the ordinary course of business shall be incurred.
4.2 No action shall be taken by MIDAS, and/or the Midas Companies, that may affect or modify the business or the organization of the Pledgor against Midas Companies, except for those certain shareholder and corporate structure changes which have been disclosed to MARELLI. No employees, consultants, commercial agents or representatives of the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement Midas Companies shall be hired or dismissed; none or the Finance Documentsrespective rights and obligations thereof shall be modified, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights except in the Pledged Collateralordinary course of business in accordance with past practices or as mandated by law or applicable national collective bargaining agreements.
4.3 No leases, the validityreal estate conveyances, perfection major contracts (including licensing or priority distribution agreements, mortgages, pledges, joint venture agreements, loans or credit agreements) of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral Midas Companies shall be made, amended or terminated.
4.4 No contracts or commitments shall be entered into by or on behalf of any of the Midas Companies that extend beyond the Closing Date, or involve the purchase, sale, or encumbrance of fixed assets, except commitments which are normal in connection with the ordinary course of the business.
4.5 None of the Midas Companies shall commence any litigation, except for those which are necessary to preserve their business or their rights, provided that MARELLI shall be immediately informed thereof and kept fully informed of any development; in addition, none of the Midas Companies shall settle any threatened or pending litigation without the prior consent of MARELLI.
4.6 No transaction contemplated by this Agreementshall take place between any of the Midas Companies, MIDAS and their respective shareholders, or any subsidiary or affiliated company thereof, except transactions at arm's length or transactions which were not and shall not be detrimental to the Midas Companies.
Appears in 1 contract
Covenants. (a) The Pledgor hereby Company covenants and agrees with the several Underwriters that:
(i) The Company will:
(x) use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto to become effective as promptly as possible. If required, the Company will file the Prospectus or any Term Sheet that during constitutes a part thereof and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Securities Act. During any time when a prospectus relating to the Shares is required to be delivered under the Securities Act, the Company (I) will comply with all requirements imposed upon it by the Securities Act and the rules and regulations of the Commission thereunder to the extent necessary to permit the continuance of sales of or dealings in the Shares in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (II) will not file with the Commission the Prospectus, Term Sheet, any amendment or supplement to such Prospectus or Term Sheet, any amendment to the Registration Statement (including the amendment referred to in the second sentence of Section 5(a)(i) hereof) or any Rule 462(b) Registration Statement unless the Representatives previously have been advised of, and furnished with a copy within a reasonable period of time prior to, the proposed filing and the Representatives shall have given their consent to such filing, which consent shall not unreasonably be withheld. The Company will prepare and file with the Commission, in accordance with the rules and regulations of the Commission, promptly upon request by the Representatives or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the several Underwriters. The Company will advise the Representatives, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus or Term Sheet or any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Representatives of each such filing or effectiveness;
(y) without charge, provide (I) to the Representatives and to counsel for the Underwriters, an executed and a conformed copy of the Original Registration Statement and each amendment thereto or any Rule 462(b) Registration Statement (in each case including exhibits thereto), (II) to each other Underwriter, a conformed copy of the Original Registration Statement and each amendment thereto or any Rule 462(b) Registration Statement (in each case without exhibits thereto), and (III) so long as a prospectus relating to the Shares is required to be delivered under the Securities Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. Without limiting the application of clause (III) of the preceding sentence, the Company, not later than (A) 9:00 A.M., New York City time, on the business day following the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 6:00 P.M., New York City time, on the business day following the date of determination of the public offering price, if such determination occurred after 12:00 noon, New York City time, on such date, will deliver to the Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Representatives may reasonably request for purposes of confirming orders that are expected to settle on the First Closing Date; and
(z) advise the Representatives, promptly after receiving notice or obtaining knowledge thereof, of (I) the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement or any amendment thereto or any Rule 462(b) Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (II) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (III) the institution, threatening or contemplation of any proceeding for any purpose identified in the preceding clause (I) or (II), or (IV) any request made by the Commission for amending the Original Registration Statement or any Rule 462(b) Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(ii) The Company will arrange for the qualification of the Shares for offering and sale in each jurisdiction as the Representatives shall designate including, but not limited to, pursuant to applicable state securities ("Blue Sky") laws of certain states of the United States of America or other U.S. jurisdictions, and the Company shall maintain such qualifications in effect for so long as may be necessary in order to complete the placement of the Shares; provided, however, that the Company shall not be obliged to file any general consent to service of process or to qualify as a foreign corporation or as a securities dealer in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(iii) If, at any time prior to the final date when a prospectus relating to the Shares is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with the Securities Act or the rules or regulations of the Commission thereunder or applicable law, the Company will promptly notify the Representatives thereof and will promptly, at its own expense, but subject to the second sentence of Section 3(a)(i)(x) hereof: (x) prepare and file with the Commission an amendment to the Registration Statement or amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance, and (y) supply any amended Registration Statement or amended or supplemented Prospectus to the Underwriters in such quantities as the Underwriters may reasonably request.
(iv) The Company will make generally available to the Company's security holders and to the Representatives as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act, including Rule 158 thereunder.
(v) The Company will apply the net proceeds from the sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(vi) The Company will not, and will not allow any subsidiary to, publicly announce any intention to, and will not itself, and will not allow any subsidiary to, without the prior written consent of Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., on behalf of the Underwriters, (x) offer, pledge, sell, offer to sell, contract to sell, sell any option or contract to purchase, purchase any option to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, Common Stock, or (y) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Common Stock (whether any such transaction described in clause (x) or (y) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise), for a period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, except pursuant to this Agreement:
Agreement and other than with respect to (a) it shall shares of Common Stock to be issued upon the exercise of a warrant and defend its title to the Pledged Collateralpurchase shares of Common Stock, and all material rights and the security interest (including the priority thereof) or upon conversion or exchange of the Pledgee conferred by this Agreement in and to the Pledged Collateralsecurities convertible or exchangeable into shares of Common Stock, in each case at case, which are outstanding on the cost of date hereof and disclosed in the Pledgor against the claims Prospectus, and demands of all persons whomsoever;
(b) except as otherwise permitted shares of Common Stock (or any securities exercisable, convertible into or exchangeable for shares of Common Stock) issued pursuant to any employee benefit plans, qualified stock option plans or other employee compensation plans which are disclosed in this Agreement the Prospectus.
(vii) Neither the Company nor any of its affiliates, nor any person acting on behalf of any of them will, directly or indirectly, (x) take any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the Finance Documents, it shall not sell, assign, transfer, charge, pledge stabilization or encumber in any manner any part manipulation of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect price of any other liability security of the Company to facilitate the Pledgor and sale or resale of the Pledgor Shares, or (y) (I) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Shares, or (II) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company; provided, however, that this paragraph shall not prove nor have be construed to apply to the right Underwriters.
(viii) The Company will obtain the agreements described in Section 7(i) hereof prior to the First Closing Date.
(ix) If at any time during the 25-day period after the Registration Statement becomes effective or during the period prior to any Closing Date, any rumor, publication or event relating to or affecting the Company shall occur as a result of proofwhich in the Representatives' sole judgment the market price of the Shares has been or is likely to be materially affected (regardless of whether such rumor, in competition with publication or event necessitates a supplement to or amendment of the PledgeeProspectus), for any monies whatsoever owing the Company will, after notice from the Representatives advising the Company to the Pledgoreffect set forth above, in any insolvency forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or liquidationother public statement reasonably satisfactory to the Representatives, responding to or analogous proceedings under any applicable lawcommenting on such rumor, of the Pledgor;publication or event.
(dx) it If the Company elects to rely on Rule 462(b), the Company shall furnish to Pledgee from time to time statements both file the Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and schedules further identifying and describing pay the Pledged Collateral as Pledgee reasonably requests, all applicable fees in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor accordance with Rule 111 promulgated under the laws Securities Act by the earlier of another jurisdiction, in each case from (x) 10:00 P.M. New York City time on the information specified in Part B date of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement and (y) the time confirmations are sent or any other Finance Document or their ability to exercise the samegiven, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated as specified by this Agreement.Rule 462(b)
Appears in 1 contract
Covenants. (a) The Pledgor hereby Company covenants and agrees with the Underwriter as follows:
(i) If the Registration Statement has not already been declared effective by the Commission, the Company will use its reasonable best efforts to cause the Registration Statement and any post effective amendments thereto to become effective as promptly as possible; the Company will notify the Underwriter promptly of the time when the Registration Statement or any post effective amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed, the receipt of any comments from the Commission with respect to the Registration Statement, Time of Sale Disclosure Package or Prospectus and the receipt of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Securities Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Company will not file any amendment or supplement to the Registration Statement, Time of Sale Disclosure Package or Prospectus to which the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(ii) The Company will advise the Underwriter, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430A, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(A) Within the time during which a prospectus (or in lieu thereof the notice referred to in Rule 173(a)) relating to the Shares is required to be delivered under the Securities Act, the Company will comply in all material respects with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of this Agreement:sales of or dealings in the Shares as contemplated by the provisions hereof, the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Company or its counsel or the Underwriter or counsel to the Underwriter to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(aB) 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, the Statutory 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 prevailing at that subsequent time, not misleading, the Company has promptly notified or will promptly notify the Underwriter and has promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The Company shall take or cause to be taken all necessary action to qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriter reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or to subject itself to taxation in respect of doing business in any jurisdiction in which it shall warrant and defend its title is not otherwise so subject.
(iv) The Company will furnish to the Pledged CollateralUnderwriter and counsel for the Underwriter, without charge, copies of the Registration Statement (three of which will be signed and will include all consents and exhibits filed therewith), each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and all material rights amendments and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and supplements to the Pledged Collateralsuch documents, in each case at as soon as available and in such quantities as the cost Underwriter may from time to time reasonably request.
(v) During a period of five years commencing with the date hereof, the Company will furnish to the Underwriter copies of all periodic and special reports furnished to the shareholders of the Pledgor against Company and all information, documents and reports filed with the claims Commission, the National Association of Securities Dealers, Inc., the Nasdaq Global Select Market or any securities exchange (other than any such information, documents and demands reports that are filed with the Commission electronically via EDGAR or any successor system).
(vi) The Com▇▇▇▇ will make generally available to its securityholders as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the effective date of the Registration Statement that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(vii) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause to be paid (A) all persons whomsoever;expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the delivery to the Underwriter of the Shares, (B) all expenses and fees (including, without limitation, fees and expenses of the Company's accountants and counsel but, except as otherwise provided below, not including fees of the Underwriter's counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Shares, any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus, and any amendment thereof or supplement thereto, and the printing, delivery, and shipping of this Agreement and other underwriting documents, (C) the fees and expenses of any transfer agent or registrar, (D) all filing fees and fees and disbursements of the Underwriter's counsel incident to any required review and approval by the National Association of Shares Dealers, Inc. of the terms of the sale of the Shares, (E) listing fees of the Nasdaq Global Select Market, if any, and (F) all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein.
(viii) If this Agreement is terminated by the Underwriter pursuant to Section 8(a)(i) or if the sale of the Shares provided for herein is not consummated by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Underwriter's obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company agrees to reimburse the Underwriter for all out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriter in connection with their investigation, preparing to market and marketing the Shares or in contemplation of performing their obligations hereunder. The Company shall in no event be liable to the Underwriter for loss of anticipated profits from the transactions covered by this Agreement.
(ix) The Company will not, without the prior written consent of the Underwriter, from the date of execution of this Agreement and continuing to and including the date ninety (90) days after the date of the Prospectus (the "Lock-Up Period") offer for sale, sell, contract to sell, pledge, grant any option for the sale of, 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, or otherwise issue or dispose of, directly or indirectly (or publicly disclose the intention to make any such offer, sale, pledge, grant, issuance or other disposition), any Common Stock or any securities convertible into or exchangeable for, or any options or rights to purchase or acquire, Common Stock other than in accordance with the Company's employee compensation plans described in the Registration Statement, Time of Sale Disclosure Package and Prospectus. The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period. If (1) during the period that begins on the date that is 18 calendar days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, (a) the Company issues an earnings release, (b) the Company publicly announces material news or (c) a material event relating to the Company occurs; or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions in this Agreement, unless otherwise waived by the Underwriter in writing, shall continue to apply until the expiration of the date that is 18 calendar days after the date on which (a) the Company issues the earnings release, (b) the Company publicly announces material news or (c) a material event relating to the Company occurs. The Company will provide the Underwriter and the Selling Shareholders with prior notice of any such announcement that gives rise to the extension of the Lock-Up Period.
(x) The Company has caused to be delivered to the Underwriter prior to the date of this Agreement a letter agreement, substantially in the form of Exhibit A hereto, from each of the Company's directors and officers stating that such person agrees that he or she will not, without the Underwriter's prior written consent, offer for sale, sell, contract to sell or otherwise dispose of, as set forth in such letter, any shares of Common Stock or rights to purchase Common Stock, except as otherwise permitted to the Underwriter pursuant to this Agreement, for a period of ninety (90) days after commencement of the public offering of the Shares by the Underwriter (each a "Lock-Up Agreement"). The Company will enforce the terms of each Lock-Up Agreement and issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(xi) The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and has not effected any sales of Common Stock which are required to be disclosed in response to Item 701 of Regulation S-K under the Securities Act which have not been so disclosed in the Registration Statement.
(xii) The Company will not incur any liability for any finder's or broker's fee or agent's commission in connection with the execution and delivery of this Agreement or the Finance Documentsconsummation of the transactions contemplated hereby.
(xiii) The Company will file on a timely basis with the Commission such periodic and special reports as required by the Rules and Regulations.
(xiv) The Company and its subsidiaries will maintain such controls and other procedures, including without limitation those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, th▇▇ ▇▇▇ ▇▇▇▇▇▇▇d to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to Company, including its subsidiaries, is made known to them by others within those entities.
(xv) The Company and its subsidiaries will comply, in all material respects, with all other applicable provisions of the Sarbanes-Oxley Act.
(xvi) The Company represents and agrees that, unless it obtains the prior written consent of the Underwriter, and the Underwriter represents and agrees that, unless it obtains the prior written consent of the Company, it shall has not sellmade and will not make any offer relating to the Shares that would constitute an "issuer free writing prospectus," as defined in Rule 433 under the Securities Act, assignor that would otherwise constitute a "free writing prospectus," as defined in Rule 405 under the Securities Act, transfer, charge, pledge or encumber in any manner any part required to be filed with the Commission; provided that the prior written consent of the Pledged Collateral or suffer parties hereto shall be deemed to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security have been given in respect of its liability hereunder or the free writing prospectuses included in respect of any other liability of Schedule II. Any such free writing prospectus consented to by the Company to the Pledgor and the Pledgor shall not prove nor have the right of proofUnderwriter 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, in competition and has complied and will comply with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any requirements of Rule 433 applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company represents that it has satisfied and agrees that it will satisfy the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreement.condition
Appears in 1 contract
Covenants. (a) The Pledgor hereby Company covenants with each Underwriter as follows:
(i) The Company will use its best efforts to cause the Registration Statement, if not effective at the Representation Date, and any amendment thereto, to become effective as promptly as possible after the filing thereof. The Company will not file any amendment to the Registration Statement or amendment or supplement to the Prospectus to which the Underwriters shall reasonably object in writing after a reasonable opportunity to review such amendment or supplement. Subject to the foregoing sentences in this clause 3(a)(i), if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus or any Term Sheet that during constitutes a part thereof or supplement to the continuance Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus or any Term Sheet that constitutes a part thereof, properly completed, or such supplement thereto, to be filed with the Commission pursuant to Rule 434 and the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriters of such timely filing. The Company will promptly advise the Underwriters and, if requested, confirm such advice in writing, (A) when the Registration Statement, if not effective at the Representation Date, and any amendment thereto, shall have become effective, (B) when the Prospectus or any Term Sheet that constitutes a part thereof, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 434 and 424(b), (C) when any amendment to the Registration Statement shall have been filed or become effective, (D) of any request by the Commission for any amendment of or supplement to the Registration Statement or any Prospectus or for any additional information, (E) of the receipt by the Company of any notification of, or if the Company otherwise has knowledge of, the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose, (F) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement:
, when the Rule 462(b) Registration Statement has become effective and (a) it shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereofG) of the Pledgee conferred receipt by this Agreement in and the Company of any notification with respect to the Pledged Collateralsuspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the lifting thereof.
(ii) If, at any time when a prospectus relating to the Shares is required to be delivered under the Act or the Act Regulations, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with the Act or the Act Regulations, the Company promptly will prepare and file with the Commission, at the Company's expense, subject to the second sentence of Section 3(a)(i) hereof, an amendment or supplement which will correct such statement or omission or effect such compliance and will use its best efforts to cause the same to become effective as soon as possible; and in case any Underwriter is required to deliver a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company upon request, but at the expense of such Underwriter, will promptly prepare such amendment or amendments to the Registration Statement and such Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act. Neither consent to, nor delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(iii) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company, at its expense, but only for the nine-month period referred to in Section 10(a)(3) of the Act, will furnish to each Underwriter or mail to its order copies of the Registration Statement, the Prospectus, the Preliminary Prospectus and all amendments and supplements to any such documents, in each case as soon as available and in such quantities as such Underwriter may request, for the purposes contemplated by the Act.
(iv) The Company consents to the use of the Prospectus in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Shares are offered by the Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with the sales by any Underwriter or dealer. The Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, so far as necessary to permit the continuance of sales of or dealing in the Shares in accordance with the provisions hereof and the Prospectus.
(v) As soon as practicable, but in any event not later than forty-five (45) days after the end of the 12-month period beginning at the cost end of the Pledgor against fiscal quarter of the claims Company during which the Effective Date occurs (or 90 days, if such 12-month period coincides with the Company's fiscal year) the Company will make generally available to its security holders and demands to the Underwriters a consolidated earnings statement or statements of the Company and its Subsidiaries covering a twelve-month period beginning with the first full calendar quarter following the Effective Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(vi) The Company will, without charge, furnish (A) to the Underwriters, three signed copies of the Registration Statement (including exhibits thereto), (B) to each Underwriter, a conformed copy of such Registration Statement (without exhibits thereto) and (C) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Prospectus and all persons whomsoever;amendments and supplements thereto as the Underwriters may reasonably request. The copies of the Registration Statement, and each amendment thereto, and the copies of the Prospectus, and any amendments or supplements thereto, furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGA▇, ▇▇cept to the extent permitted by Regulation S-T.
(vii) During the period of five years hereafter the Company will furnish to the Underwriters as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Underwriters (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Underwriters may reasonably request, provided that prior to the Company's furnishing any such other information that is nonpublic the Underwriters shall enter into such agreement respecting the confidentiality thereof as the Company may reasonably request.
(viii) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in accordance with the description set forth in the "Use of Proceeds" section of the Prospectus.
(ix) The Company will cooperate with the Underwriters and their counsel in connection with endeavoring to obtain and maintain the qualification or registration, or exemption from qualification, of the Shares for offer and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject.
(x) The Company will not at any time, directly or indirectly (A) take any action designed to cause or result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, or (B) (1) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares or (2) pay or agree to pay any person any compensation for soliciting another to purchase any other securities of the Company.
(xi) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(xii) The Company will not, directly or indirectly, for a period of 180 days following the date of the Prospectus, without the prior written consent of Ladenburg, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock, regardless of whether any of the transactions described in this paragraph are to be settled by the delivery of Common Stock, or such other securities, in cash or otherwise, other than (A) pursuant to any employee stock option plan of the Company in effect at the Representation Date, or (B) upon exercise of any options outstanding at the Representation Date. The Company also agrees not to file any registration statement with respect to any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock for a period of 180 days following the date of the Prospectus without the prior written consent of Ladenburg.
(xiii) The Company shall cause the Shares to be quoted on the Nasdaq National Market and shall use its best efforts to maintain such trading while the Shares are outstanding.
(xiv) The Company will not, prior to the later of 25 days after the Effective Date or any Additional Shares Closing Date, as the case may be, issue any press release or other communication, directly or indirectly, or hold any press conferences with respect to the Company or any Subsidiary or the offering without the prior written consent of Ladenburg, which consent will not be unreasonably withheld.
(xv) Until the expiration of three years from the Effective Date, the Company will not effect a change in the independent certified public accountants for the Company unless either the Company has received Ladenburg's prior written consent, which consent will not be unreasonably withheld, or such substitute independent certified public accountant is one of the "big five" firms.
(xvi) If the Registration Statement at the time of effectiveness of this Agreement does not cover all of the Shares, the Company will file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement and will pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or will give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part The Selling Stockholder covenants and agrees with each of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;Underwriters that:
(ci) it shall not The Selling Stockholder will not, directly or indirectly (A) take from any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the Company any undertaking stabilization or security in respect manipulation of its liability hereunder or in respect the price of any other liability security of the Company to facilitate the Pledgor and sale or resale of the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidationShares, or analogous proceedings under (B) (1) sell, bid for, purchase, attempt to induce any applicable lawperson to purchase, or pay anyone any compensation for soliciting purchases of the Pledgor;
Shares or (d2) it shall furnish pay or agree to Pledgee from time pay to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice any person any compensation for soliciting another to Pledgee of purchase any (i) change other securities of the location of Pledgor’s chief executive office, Company.
(ii) As soon as the Selling Stockholder is advised thereof, the Selling Stockholder will advise the Underwriters and confirm such advice in writing, (A) of receipt by the Selling Stockholder, or by any representative or agent of the Selling Stockholder, of any communication from the Commission relating to the Registration Statement, the Prospectus or any Preliminary Prospectus, or any notice or order of the Commission relating to the Company or the Selling Stockholder in connection with the transactions contemplated by this Agreement and (B) of the happening of any event which makes or may make any statement made in the Registration Statement, the Prospectus or any Preliminary Prospectus untrue or that requires the making of any change of Pledgor’s namein the Registration Statement, identity Prospectus or structure or Preliminary Prospectus, as the case may be, in order to make such statement not misleading.
(iii) reorganization The Selling Stockholder will not, directly or reincorporation indirectly, for a period of Pledgor under 180 days following the laws date of another jurisdictionthe Prospectus, without the prior written consent of Ladenburg, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock, regardless of whether any of the transactions described in this paragraph are to be settled by the delivery of Common Stock, or such other securities, in each case from the information specified in Part B of Schedule 1;
(f) it shall cash or otherwise. The Selling Stockholder also agrees not consent to make any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the samedemand for, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, exercise any and all liabilities right with respect to, the registration of any shares of Common Stock or resulting from any delay in paying, any and all stamp, excise, sales securities convertible into or other taxes which may be payable exercisable or determined to be payable with respect to any exchangeable for Common Stock for a period of 180 days following the date of the Pledged Collateral or in connection with Prospectus without the transaction contemplated by this Agreementprior written consent of Ladenburg.
(iv) The Selling Stockholder will deliver to the Underwriters prior to the Firm Shares Closing Date a properly completed and executed United States Treasury Department Form W-9.
Appears in 1 contract
Covenants. The Pledgor hereby Each of the Seller, FCNB, the Servicer and the --------- Issuer severally covenants that during and agrees, in each case as to itself individually or in such respective capacities, each with respect to itself only, through the continuance Series Termination Date and thereafter so long as any amount of this Agreementthe Class C Note Principal Balance shall remain outstanding or any monetary obligation arising hereunder shall remain unpaid, unless the Required Class C Owners shall otherwise consent in writing, that:
(a) Each of the Seller, FCNB, the Servicer and the Issuer shall perform in all material respects each of the respective agreements, warranties and indemnities applicable to it under the Related Documents and comply in all material respects with each of the respective terms and provisions applicable to it under the Related Documents to which it is party, which agreements, warranties and indemnities are hereby incorporated by reference into this Agreement as if set forth herein in full; and each of the Servicer and the Issuer shall warrant and defend its title take all reasonable actions to enforce the obligations of each of the other parties to the Pledged CollateralPooling and Servicing Agreement, and all material rights the Collateral Series Supplement and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeverCollateral Certificate which are contained therein;
(b) except The Seller, the Issuer and the Servicer, as otherwise permitted in applicable, shall promptly furnish to the Administrative Agent (i) a copy of each certificate, report, statement, notice or other communication (including without limitation, a copy of any Opinion of counsel delivered pursuant to Section 8.9 of the Indenture) furnished by or on behalf of the Seller, the Issuer or the Servicer, as applicable, to the holders of Series 2001-A Notes, to the Indenture Trustee or to the Rating Agencies (other than any portion of any such communication relating to other outstanding Series) concurrently therewith and furnish to the Administrative Agent promptly after receipt thereof a copy of each notice, demand or other communication received by or on behalf of the Seller, the Issuer or the Servicer, as applicable, pursuant to this Agreement, the Transfer and Servicing Agreement, the Indenture, the Indenture Supplement or any Pooling and Servicing Agreement or the Finance DocumentsCollateral Series Supplement (other than any portion of any such communication relating to other outstanding Series), it shall not selland (ii) such other information, assigndocuments records or reports respecting the Accounts, transferthe Receivables, chargethe Issuer, pledge the Seller or encumber the Servicer which is in any manner any part the possession or under the control of the Pledged Collateral Issuer, the Seller or suffer the Servicer, as the case may be, as the Administrative Agent may from time to exist any encumbrance on time reasonably request. Each such communication provided hereunder shall be furnished to the Pledged Collateral, other than Permitted LiensAdministrative Agent in writing;
(c) it The Issuer or the Servicer, as applicable, shall not take from furnish to the Company Administrative Agent (i) a copy of each annual certified public accountants' reports received by the Indenture Trustee pursuant to Section 3.6 of the Transfer and Servicing Agreement (other than any undertaking or security in portion of such reports relating to other outstanding Series), (ii) with respect to each Distribution Date with respect to the Transfer and Servicing Agreement, a copy of its liability hereunder or in respect the completed report furnished to the Indenture Trustee pursuant to Section 3.4(b) of the Transfer and Servicing Agreement, and (iii) a copy of any other liability report furnished to the Indenture Trustee pursuant to Section 3.5 of the Company Transfer and Servicing Agreement (other than any portion of such reports relating to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgorother outstanding Series);
(d) it There shall furnish be no assets included in the Trust Assets other than any Collateral Certificate or, upon termination of the First Consumers Master Trust, the assets previously included in or includible in the First Consumers Master Trust or as consented to Pledgee from time to time statements and schedules further identifying and describing by the Pledged Collateral as Pledgee reasonably requests, all in reasonable detailAdministrative Agent;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change Each of the location Seller, FCNB, the Servicer and the Issuer shall furnish to the Administrative Agent promptly after known to such party, information with respect to any action, suit or proceeding involving such party or any of Pledgor’s chief executive office, its Affiliates (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdictionother than, in each the case from of the information specified Seller, Servicer, FCNB and the Issuer) by or before any court or any Governmental Authority which, if adversely determined, would be reasonably likely to result in Part B of Schedule 1a material and adverse effect on such party or the transactions contemplated by, or such party's ability to perform its obligations under, this Agreement or the Related Documents;
(f) it From the Closing Date until the Termination Date, each of the Issuer, the Seller and the Servicer, as applicable, will, at any time and from time to time during regular business hours, on at least five Business Days' (or if a Series 2001-A Pay Out Event or event or condition which, with the passage of time or the giving of notice, or both, would become a Series 2001-A Pay Out Event has occurred, one Business Day's) notice to the Issuer, the Seller or the Servicer, as the case may be, permit the Administrative Agent, or its agents or representatives, at the Issuer's, the Seller's and the Servicer's, as applicable, reasonable cost and expense if a Series 2001-A Pay Out Event has occurred (and otherwise at the expense of the Administrative Agent),
(i) to examine all books, records and documents (including computer tapes and disks) in the possession or under the control of the Issuer, the Seller or the Servicer, as the case may be, relating to the Receivables (other than names of account holders and strategic plans for the Servicer's credit card business and other than any portion of such books, records and documents relating to other outstanding Series), including the forms of Credit Card Agreements under which such Receivables arise, and (ii) to visit the offices and properties of the Issuer, the Seller or the Servicer, as applicable, for the purpose of examining such materials described in clause (i) above. Any information obtained by the Administrative Agent pursuant to this Section 5.1(f) shall not consent be held in confidence by the Administrative Agent in accordance with the provisions of Section 6.2 hereof, except that the Administrative Agent may disclose such information to any termination Class C Purchaser which shall hold such information in accordance with the provisions of or amendment to the Organizational Documents or other organizational documents Section 6.2 hereof;
(g) Except for New Issuances in accordance with Section 2.12 of the Company that could reasonably be expected Indenture and modifications to Supplemental Indentures with respect to Series other than Series 2001-A and except for terminations, amendments, waiver and modifications of Related Documents otherwise permitted hereunder, none of the Seller, FCNB, the Servicer or the Issuer shall take any action which, under the terms of the Related Documents, requires the satisfaction of the Rating Agency Condition, if such action would materially adversely affect the Pledged CollateralClass C Purchasers, unless such action has been consented to by the Required Class C Owners;
(h) Neither the Seller nor the Issuer shall reduce or withdraw any Discount Percentage if the Early Amortization Commencement Date has occurred. Neither the Seller nor the Issuer shall reduce or withdraw any Discount Percentage unless it shall have delivered to the Administrative Agent an Officer's Certificate of the Servicer stating that the Servicer reasonably believes that such reduction or withdrawal will not (i) result in the occurrence of a Series 2001-A Pay Out Event or (ii) cause the Portfolio Yield to be less than the Base Rate;
(i) Neither the Seller nor FCNB shall amend the Collateral Certificate, the Pledgor’s rights in the Pledged CollateralPooling and Servicing Agreement, the validityCollateral Series Supplement or any other Related Document in any respect which could have a material adverse effect on the Class C Purchasers without the prior written consent of by the Required Class C Owners;
(j) Any determination to be made by the Seller, perfection FCNB, the Servicer or priority the Issuer pursuant to any Related Document that a matter does not adversely or materially adversely affect (within the meaning of such Related Document) the security interests of Noteholders shall not be made unless such matter does not adversely or materially adversely affect the interests of the Pledgee Class C Purchasers;
(k) The Issuer shall not exercise its optional right to repay all Class C Notes pursuant to Section 7.1 of the Supplemental Indenture, unless the Class C Purchasers and the Administrative Agent have been paid, or will be paid upon such purchase or in the Pledged Collateralconnection with such optional repayment, the rights Class C Note Principal Balance, all interest thereon and remedies all other amounts owing hereunder in full;
(l) The Servicer shall furnish to the Administrative Agent, promptly after the occurrence of any Series 2001-A Pay Out Event, a certificate of an appropriate officer of the Pledgee Servicer setting forth the circumstances of such Series 2001-A Pay Out Event and any action taken or proposed to be taken by the Servicer, the Seller, FCNB or the Issuer with respect thereto;
(m) Each of the Seller, the Issuer and the Servicer, as applicable, shall not terminate (except in accordance with the terms thereof and only if at the time of such termination none of the Class C Note Principal Balance or other amount payable to the Administrative Agent and the Class C Purchasers hereunder is unpaid), amend, waive or otherwise modify any Transaction Document to which it is a party in any manner which, under this Agreement the terms of the Transaction Documents, requires the satisfaction of the Rating Agency Condition without the prior written consent of the Administrative Agent, unless the Seller, the Issuer or the Servicer, as applicable, delivers to the Administrative Agent an Officer's Certificate, in form and substance satisfactory to the Administrative Agent, to the effect that such amendment, waiver or modification does not adversely affect the interest of the Class C Purchasers in any material respect. Each of the Seller, the Issuer and the Servicer, as applicable, shall not terminate (except in accordance with the terms thereof and only if at the time of such termination none of the Class C Note Principal Balance or other Finance Document amount payable to the Administrative Agent and the Class C Purchasers hereunder is unpaid), amend, waive or their ability otherwise modify the Indenture Supplement without the prior written consent of the Administrative Agent;
(n) There shall be no Series of Notes other than Series 2001-A included in Group One without the prior written consent of the Required Class C Owners if after giving effect to exercise the same, or cause an Event issuance of Default to occursuch Series the weighted average coupon on the outstanding securities issued by First Consumers Master Trust and the Issuer exceeds 9.00%. There shall be no Series of Notes paired with Series 2001-A without the prior written consent of the Required Class C Owners; and
(go) it The Servicer shall indemnify furnish to the Pledgee fromRating Agencies, and hold it harmless againstpromptly after the occurrence of any Cap Increase Event, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementwritten notice thereof.
Appears in 1 contract
Sources: Class C Note Purchase Agreement (First Consumers Master Trust)
Covenants. The Pledgor hereby Except as expressly authorized by this Agreement or expressly consented to in writing by Purchaser, Arai covenants that during and agrees with Purchaser as follows:
6.1 Conduct of the continuance Business Pending the Closing. Until the Closing, Arai shall and shall cause the Company to comply with the provisions set forth below (unless otherwise consented to in writing by Purchaser), including filings under the HSR Act with the Federal Trade Commission and the Antitrust Division of this Agreementthe Department of Justice, and shall furnish to the other all such information in its possession as may be necessary for the completion of the reports or notifications to be filed by the other:
(a) it The Company and its Subsidiaries shall warrant conduct its business in the ordinary and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoeverusual course;
(b) except as otherwise permitted in this Agreement Arai shall promptly notify Purchaser of, and furnish to Purchaser any information that Purchaser may reasonably request with respect to, the occurrence of any event or the Finance Documents, it shall existence of any state of facts that may result in the representations and warranties of Arai not sell, assign, transfer, charge, pledge being true if they were made at any time prior to or encumber in any manner any part as of the Pledged Collateral or suffer to exist any encumbrance on date of the Pledged Collateral, other than Permitted LiensClosing;
(c) it shall not take from Except as provided by the Benefit Plans or set forth on Schedule 6.1, neither the Company nor any undertaking or security in respect of its liability hereunder Subsidiaries shall (i) grant or agree to grant any bonuses to any employee, (ii) grant any general increase in respect the rates of salaries or compensation of its or their employees or any other liability specific increase to any employee, including executive officers of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proofCompany, in competition with the Pledgee, (iii) provide for any monies whatsoever owing from the Company new pension, retirement or other employment benefits to the Pledgor, any of its or their employees or any increase in any insolvency existing benefits or liquidation, (iv) terminate or analogous proceedings amend in any respect or provide for any material increase in benefits under any applicable law, of the PledgorBenefit Plan;
(d) it Neither the Company nor any of its Subsidiaries shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detailamend its charter or by-laws or enter into any merger or consolidation agreement;
(e) it Neither the Company nor any of its Subsidiaries shall give at least 30 days’ prior written notice authorize for issuance, issue, sell, deliver or agree or commit to Pledgee issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any capital stock of any (i) change class or any other securities or equity equivalents or amend any of the location terms of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity any such securities or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1agreements;
(f) it The Company shall not consent use its best efforts to any termination of or amendment to maintain and preserve the Organizational Documents or other organizational documents business of the Company intact, to retain their present employees so that could reasonably they will be expected available to adversely affect Purchaser after the Pledged CollateralClosing and to maintain existing relationships with customers, suppliers and others so that those relationships will be preserved after the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andClosing;
(g) it Neither the Company nor any of its Subsidiaries shall indemnify sell, assign or dispose of any of its assets or properties, tangible or intangible, or incur or assume any liabilities or enter into any sale/leaseback or similar transaction, except for sales and dispositions of inventory made, or liabilities incurred, in the Pledgee fromordinary course of business consistent with past practices;
(h) Neither the Company nor any of its Subsidiaries shall assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or entity except in the ordinary and hold it harmless againstusual course of business consistent with past practice and in amounts not material to the Company and its Subsidiaries, taken as a whole, or make any loans, advances or capital contributions to or investments in any other Person or entity, other than in the ordinary course of business consistent with past practices and in amounts not material to the Company and its Subsidiaries, taken as a whole;
(i) The Company and its Subsidiaries shall use best efforts to maintain in full force and effect all insurance currently maintained;
(j) Neither the Company nor any of its Subsidiaries shall take, or agree in writing or otherwise to take, any of the actions described in this Section 6.1 or any action that would make any representation or warranty inaccurate or untrue in any material respect or that would result in any of the conditions set forth in Article 7 hereof not being satisfied;
(k) Arai and the Company and its Subsidiaries shall use its best efforts to comply with all liabilities applicable local, state and federal laws, rules and regulations, judgments, decrees, orders, governmental permits, certificates and licenses;
(l) The Company shall maintain the books of account and records in the usual, regular and customary manner consistent with practices employed prior to the date hereof;
(m) Neither the Company nor any of its Subsidiaries shall implement or adopt (i) any change in its accounting methods or principles or the application thereof (including depreciation lives) or (ii) any material change in its tax methods or principles or the application thereof (including depreciation lives); or
(n) Arai will not permit the Company or any Subsidiary, without the prior written consent of Purchaser, to (i) declare or pay any dividend on or make any other distribution in respect to, or resulting from of any delay in paying, any and all stamp, excise, sales of its capital stock or other taxes which may be payable ownership interests, (ii) split, combine or determined reclassify any of its capital stock or other ownership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of, its capital stock or other ownership interests, (iii) purchase, redeem or otherwise acquire any shares of its capital stock or other ownership interests, (iv) advance or otherwise loan any funds to be payable the Stockholders or any Affiliate of the Company or the Stockholders other than the Company or any Subsidiaries or (v) take any preliminary action with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementforegoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Energy Ventures Inc /De/)
Covenants. The Pledgor hereby covenants that during a) During the continuance term of this Agreement, the Company covenants and agrees as follows:
(ai) it shall warrant Promptly following execution of this Agreement, the Board of Directors of the Company and defend its title to the Pledged CollateralBank will be expanded by one board seat, and all material rights the Company and Bank will appoint the security interest Nominee, subject to any applicable regulatory approval and/or regulatory clearance requirement (including which regulatory approval and/or regulatory clearance requirement the priority thereof) Company will use its best efforts to obtain promptly), as a director of the Pledgee conferred by this Agreement Company and Bank to serve in and to the Pledged Collateral, in each case class of directors with terms expiring at the cost Company’s 2025 Annual Meeting of the Pledgor against the claims Stockholders and demands Bank’s 2025 Annual Meeting of all persons whomsoeverStockholders, respectively;
(bii) except as otherwise permitted in this Agreement or The Board of Directors shall amend the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability Bylaws of the Company to remove the Pledgor residency requirements applicable to director nominees and the Pledgor shall not prove nor have the right directors of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to such that Nominee may serve on the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, Board of Directors of the PledgorCompany;
(diii) it Upon the Nominee’s appointment and qualification to the Company’s and the Bank’s Boards of Directors, the Nominee shall furnish be treated on a consistent basis with other members of the Company’s and the Bank’s Boards of Directors in all respects, including with respect to Pledgee from time annual compensation and benefits, grants of shares, and options to time statements purchase shares, including initial grants of 10,210 awards and schedules further identifying and describing 25,500 options to purchase shares, both on a five year vesting schedule with 20 percent of such initial grants vesting each year, only to the Pledged Collateral as Pledgee reasonably requests, all in reasonable detailextent such awards or options to purchase shares are available under the existing equity incentive plans maintained by the Company;
(eiv) it Should the Nominee’s position as a director of the Company or the Bank be terminated during the term of this Agreement due to his resignation, death, permanent disability or otherwise, the Company shall give at least 30 days’ prior written notice appoint a replacement director, selected by the ▇▇▇▇▇▇▇▇ Group (“Replacement Director”), subject to Pledgee the approval of the Company, which approval shall not be unreasonably withheld, and subject to any applicable regulatory approval and/or regulatory clearance requirement, and the Replacement Director shall, subject to his or her agreement to honor the provisions of Sections 3(c) and 3(d) hereof, be appointed promptly to the Boards of the Company and the Bank.
b) During the term of this Agreement, the Nominee, ▇▇▇▇▇▇▇▇ Group and each ▇▇▇▇▇▇▇▇ Group Member covenant and agree not to do the following, directly or indirectly, alone or in concert with any affiliate, other group or other person:
(i) change own, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, or through the acquisition of control of another person or entity (including by way of merger or consolidation) any additional shares of the location outstanding Company Common Stock, any rights to vote or direct the voting of Pledgor’s chief executive officeany additional shares of Company Common Stock (i.e., in excess of the aggregate number of shares held by the ▇▇▇▇▇▇▇▇ Group as of the date hereof), or any securities convertible into Company Common Stock except for additional shares acquired by way of (A) stock splits, stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of the Company Common Stock generally, (B) inter-company or inter-fund transfers between members of the ▇▇▇▇▇▇▇▇ Group and/or its affiliates, or (C) any securities acquired by the Nominee pursuant to his directorships contemplated herein (or issued to the Nominee upon exercise or conversion thereof in the case of convertible securities);
(ii) change without the Company’s prior written consent, directly or indirectly, sell, transfer or otherwise dispose of Pledgorany interest in the ▇▇▇▇▇▇▇▇ Group’s nameshares of Company Common Stock to any person the ▇▇▇▇▇▇▇▇ Group believes, identity after reasonable inquiry, would be beneficial owner after any such sale or structure transfer of more than 5% of the outstanding shares of the Company Common Stock nor shall Nominee sell, transfer or otherwise dispose of any interest in shares of Company Common Stock to any such person referenced above;
(iii) reorganization (A) propose or reincorporation of Pledgor under the laws of another jurisdictionseek to effect a merger, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents consolidation, recapitalization, reorganization, sale, lease, exchange or other organizational documents disposition of substantially all the assets of, or other business combination involving, or a tender or exchange offer for securities of, the Company or the Bank or any material portion of the Company’s or the Bank’s business or assets or any type of transaction that would result in a change in control of the Company (any such transaction described in this clause (A) is a “Company Transaction” and any proposal or other action seeking to effect a Company Transaction as described in this clause (A) is defined as a “Company Transaction Proposal”), (B) seek to exercise any control or influence over the management of the Company or the Boards of Directors of the Company or the Bank or any of the businesses, operations or policies of the Company or the Bank, (C) present to the Company, its stockholders or any third party any proposal constituting or that could reasonably be expected to adversely affect result in a Company Transaction, or (D) seek to effect a change in control of the Pledged CollateralCompany;
(iv) publicly suggest or announce its willingness or desire to engage in a transaction or group of transactions or have another person engage in a transaction or group of transactions that would constitute or could reasonably be expected to result in a Company Transaction or take any action that might require the Company to make a public announcement regarding any such Company Transaction;
(v) initiate, request, induce, encourage or attempt to induce or give encouragement to any other person to initiate any Company Transaction Proposal, or otherwise provide assistance to any person who has made or is contemplating making, or enter into discussions or negotiations with respect to, any Company Transaction Proposal;
(vi) solicit proxies or written consents or assist or participate in any other way, directly or indirectly, in any solicitation of proxies or written consents, or otherwise become a “participant” in a “solicitation,” or assist any “participant” in a “solicitation” (as such terms are defined in Rule 14a-1 of Regulation 14A and Instruction 3 of Item 4 of Schedule 14A, respectively, under the Securities Exchange Act of 1934) in opposition to any recommendation or proposal of the Company’s Board of Directors, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of (or the execution of a written consent in respect of) the Company Common Stock, or execute any written consent in lieu of a meeting of the holders of the Company Common Stock or grant a proxy with respect to the voting of the capital stock of the Company to any person or entity other than the Board of Directors of the Company;
(vii) initiate, propose, submit, encourage or otherwise solicit stockholders of the Company for the approval of one or more stockholder proposals or induce or attempt to induce any other person to initiate any stockholder proposal, or seek election to, or seek to place a representative or other affiliate or nominee on, the PledgorCompany’s rights in Board of Directors (other than with respect to the Pledged Collateralprovisions of Sections 3(a)(i), (iii) and (iv) hereof, providing for the validity, perfection or priority possible election of the security interests Nominee) or seek removal of any member of the Pledgee Company’s or the Bank’s Boards of Directors;
(viii) form, join in the Pledged Collateral, the rights and remedies or in any other way (including by deposit of the Pledgee under this Agreement Company’s capital stock) participate in a partnership, pooling agreement, syndicate, voting trust or other group with respect to Company Common Stock, or enter into any agreement or arrangement or otherwise act in concert with any other person, for the purpose of acquiring, holding, voting or disposing of Company Common Stock;
(ix) (A) join with or assist any person or entity, directly or indirectly, in opposing, or make any statement in opposition to, any proposal or director nomination submitted by the Company's Board of Directors to a vote of the Company's stockholders, or (B) join with or assist any person or entity, directly or indirectly, in supporting or endorsing (including supporting, requesting or joining in any request for a meeting of stockholders in connection with), or make any statement in favor of, any proposal submitted to a vote of the Company's stockholders that is opposed by the Company's Board of Directors;
(x) vote for any nominee or nominees for election to the Board of Directors of the Company or any proposal other Finance Document than those nominated, proposed or supported by the Company's Board of Directors;
(xi) except in connection with the enforcement of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation against the Company or the Bank or their ability to exercise the samerespective officers and directors, or cause an Event in any derivative litigation on behalf of Default the Company or the Bank, except for testimony which may be required by law;
(xii) advise, assist, encourage or finance (or arrange, assist or facilitate financing to occuror for) any other person in connection with any of the matters restricted by, or otherwise seek to circumvent the limitations of, this Agreement; and
(gxiii) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined request to be payable with respect to excused from any of the Pledged Collateral foregoing obligations of this Section 3(b) and/or publicly announce or disclose any intention to request to be excused from any of the foregoing obligations of this Section 3(b).
c) During the term of this Agreement, each ▇▇▇▇▇▇▇▇ Group Member and the Nominee agree not to disparage the Company, the Bank or any of their directors (including nominees supported by the Company’s Board of Directors), officers or employees in connection any public or quasi-public forum, and the Company and the Bank agree not to disparage the ▇▇▇▇▇▇▇▇ Group, any ▇▇▇▇▇▇▇▇ Group Member, or the Nominee (or Replacement Director, as the case may be) in any public or quasi-public forum.
d) The Nominee agrees that during the term of this Agreement: (i) he will not take any action, directly or indirectly, which, if the Nominee were deemed to be a ▇▇▇▇▇▇▇▇ Group Member, would be in violation of or inconsistent with any of the covenants and agreements made by the ▇▇▇▇▇▇▇▇ Group in clauses (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) and (xii) of Section 3(b); (ii) in the event that the Nominee breaches clause (i) of this Section 3(d), he shall promptly resign his positions as a director of the Company and the Bank; in the event that the Nominee fails to resign after a breach in accordance with the transaction contemplated provisions of this clause (ii), the Nominee agrees that the remaining directors of the Company and the Bank, by majority vote thereof, may remove the Nominee, from his directorship positions with the Company and the Bank; (iii) the Nominee will promptly submit his resignation as a director of the Company and Bank in the event of the termination of this Agreement, and (iv) while serving as a member of the Board of Directors of the Company and/or Bank, Nominee will abide by any Code of Ethics, Code of Conduct or any policies, procedures and guidelines applicable to a director of the Company and/or Bank and, whether or not while serving as member of the Board of Directors of the Company or Bank, will not disclose any confidential information obtained in his capacity as a member of the Board of Directors of the Company and/or Bank unless permitted by policies and procedures applicable to members of the Board of Directors of the Company or Bank.
Appears in 1 contract
Sources: Standstill Agreement (Provident Bancorp, Inc. /MD/)
Covenants. The Pledgor hereby Company covenants to Maxim that during the continuance of this Agreementit shall:
(a) it shall warrant and defend its title to the Pledged CollateralNotify Maxim as soon as practicable, and all confirm such notice promptly in writing: (i) when any event shall have occurred during the period commencing on the date hereof and ending on the later of the Closing Date as a result of which the Memorandum would include any untrue statement of a material rights fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the security interest (including the priority thereofii) of the Pledgee conferred by this Agreement in and receipt of any notification with respect to the Pledged Collateralmodification, in each case at the cost rescission, withdrawal or suspension of the Pledgor against qualification or registration of the claims and demands Securities or of all persons whomsoever;an exemption from such registration or qualification in any jurisdiction. The Company will use its reasonable best efforts to prevent the issuance of any such modification, rescission, withdrawal or suspension and, if any such modification, rescission, withdrawal or suspension is issued, to obtain the lifting thereof as promptly as possible. -------------------------------------------------------------------------------- Members NASD & SIPC ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. * ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ * tel (▇▇▇) ▇▇▇-▇▇▇▇ * (▇▇▇) ▇▇▇-▇▇▇▇ * fax (▇▇▇) ▇▇▇-▇▇▇▇ * ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ New York, NY * Long Island, NY * Chicago, IL [MAXIM GROUP LOGO] ADM Tronics Unlimited, Inc. May 20, 2004 Page 19 of 27
(b) except Not supplement or amend the Memoranda unless Maxim and its counsel shall have approved of such supplement or amendment in writing, such approval not to be unreasonably withheld, delayed or conditioned. If, at any time during the period commencing on the date hereof and ending on the Closing Date, any event shall have occurred as otherwise permitted a result of which the Memorandum contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or if, in this Agreement the opinion of counsel to the Company or the Finance Documentscounsel to Maxim, it shall not sellis necessary at any time to supplement or amend the Memoranda to comply with the Act, assignRegulation D or any applicable securities or "blue sky" laws, transfer, charge, pledge the Company will promptly prepare an appropriate supplement or encumber amendment (in any manner any part of the Pledged Collateral form and substance reasonably satisfactory to Maxim and its counsel) which will correct such statement or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;omission or which will effect such compliance.
(c) it shall not take from Use its best good faith efforts to, within sixty (60) says of the Closing, obtain a "key man" life insurance policy with a nationally recognized carrier and with the Company any undertaking or security as the beneficiary on the life of Andre' Di Mino in respect an amount no less than $2,000,000 worth of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;coverage.
(d) it shall furnish Deliver without charge to Pledgee from time to time statements Maxim such number of copies of the Memoranda and schedules further identifying and describing the Pledged Collateral any supplement or amendment thereto as Pledgee may reasonably requests, all in reasonable detail;be requested by Maxim.
(e) it shall give at least 30 days’ prior written notice Not, directly or indirectly, in connection with the Private Placement or as otherwise agreed to Pledgee of in this Agreement, solicit any (i) change offer to buy from, or offer to sell to, any person or entity any Securities or other securities of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Company except through Maxim.
(f) it shall not consent Not solicit any offer to buy or offer to sell Securities by any termination form of general solicitation or amendment to the Organizational Documents advertising, including, without limitation, any advertisement, article, notice or other organizational documents of communication published in any newspaper, magazine or similar medium or broadcast over the Company that could reasonably be expected to adversely affect the Pledged CollateralInternet, the Pledgor’s rights in the Pledged Collateral, the validity, perfection television or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement radio or at any other Finance Document seminar or their ability to exercise the same, meeting whose attendees have been invited by any general solicitation or cause an Event of Default to occur; andadvertising.
(g) At all times during the period commencing on the date hereof and ending on the date of the final Closing, provide to each prospective Investor or his purchaser representative, if any, on reasonable request, such information (in addition to that contained in the Memorandum) concerning the Private Placement, the Company, the Securities and any other relevant matters as it shall indemnify possesses or can acquire without unreasonable effort or expense and extend to each prospective investor or his purchaser representative, if any, the Pledgee fromopportunity to ask questions of, and hold receive answers from the Company concerning the terms and conditions of the Private Placement and the business of the Company and to obtain any other additional information, to the extent it harmless againstpossesses the same or can acquire it without unreasonable effort or expense, as such prospective Investor or purchaser representative may consider necessary in making an informed investment decision or in order to verify the accuracy of the information furnished to such prospective Investor or purchaser representative, as the case may be.
(h) Notify Maxim promptly of the acceptance or rejection of any subscription. -------------------------------------------------------------------------------- Members NASD & SIPC ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. * ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ * tel (▇▇▇) ▇▇▇-▇▇▇▇ * (▇▇▇) ▇▇▇-▇▇▇▇ * fax (▇▇▇) ▇▇▇-▇▇▇▇ * ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ New York, NY * Long Island, NY * Chicago, IL
(i) File five (5) copies of a Notice of Sales of Securities on Form D with the SEC no later than 15 days after the first sale of the Securities, if required by law. The Company shall file promptly such amendments to such Notices on Form D as shall become necessary and shall also comply with any filing requirement imposed by the laws of any province or jurisdiction in which offers and sales are made. The Company shall furnish Maxim with copies of all liabilities with respect tosuch filings.
(j) Place the following legend on all certificates representing the Securities: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE."
(k) Not, directly or resulting indirectly, engage in any act or activity which may jeopardize the status of the offering and sale of the Securities as exempt transactions under the Act or under the securities or "blue sky" laws of any jurisdiction in which the Private Placement may be made.
(l) Apply the net proceeds from the sale of the Securities for the purposes set forth under the caption "Use of Proceeds" in the Memoranda in the manner indicated thereunder.
(m) Not, during the period commencing on the date hereof and ending on the Closing Date, issue any delay in paying, any and all stamp, excise, sales press release or other taxes which may be payable communication or determined to be payable hold any press conference with respect to any the Company, its financial condition, results of operations, business properties, assets, liabilities or future prospects of the Pledged Collateral Private Placement, without the prior written consent of Maxim, which consent will not be unreasonably withheld. -------------------------------------------------------------------------------- Members NASD & SIPC ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. * ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ * tel (▇▇▇) ▇▇▇-▇▇▇▇ * (▇▇▇) ▇▇▇-▇▇▇▇ * fax (▇▇▇) ▇▇▇-▇▇▇▇ * ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ New York, NY * Long Island, NY * Chicago, IL [MAXIM GROUP LOGO] ADM Tronics Unlimited, Inc. May 20, 2004 Page 21 of 27
(n) Not, prior to the completion of the Private Placement, bid for, purchase, attempt to induce others to purchase, or sell, directly or indirectly, any shares of ADM Common Stock or any other securities in violation of the provisions of Regulation M under the Exchange Act.
(o) In addition to the foregoing, to the extent not set forth herein, Maxim may rely on the covenants made by the Company in the Subscription Documents used in connection with the transaction contemplated by this AgreementPrivate Placement.
Appears in 1 contract
Sources: Placement Agency Agreement (Adm Tronics Unlimited Inc/De)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) Filing of Form 8-K and Prospectus Supplement. The Company agrees that it shall, within the time required under the 1934 Act, file a Current Report on Form 8-K disclosing this Agreement and the transaction contemplated hereby. The Company shall warrant and defend its title file within two (2) Business Days from the date hereof a prospectus supplement to the Pledged CollateralCompany’s existing shelf registration statement on Form S-3 (File No. 333-220279, the “Shelf Registration Statement”) covering the sale of the Commitment Shares and all material rights Purchase Shares (the “Prospectus Supplement”) in accordance with the terms of the Registration Rights Agreement between the Company and the security interest Buyer, dated as of the date hereof (the “Registration Rights Agreement”). The Company shall use its reasonable best efforts to keep the Shelf Registration Statement and any New Registration Statement (as defined in the Registration Rights Agreement) effective pursuant to Rule 415 promulgated under the 1933 Act and available for sales of all Securities to the Buyer until such time as (i) it no longer qualifies to make sales under the Shelf Registration Statement (which shall be understood to include the inability of the Company to immediately register sales of Securities to the Buyer under the Shelf Registration Statement or any New Registration Statement pursuant to General Instruction I.B.6 of Form S-3), (ii) the date on which all the Securities have been sold under this Agreement and no Available Amount remains thereunder, or (iii) the Agreement has been terminated. The Shelf Registration Statement (including any amendments or supplements thereto and prospectuses or prospectus supplements, including the priority thereofProspectus Supplement, contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the Pledgee conferred by this Agreement circumstances in and to the Pledged Collateralwhich they were made, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;not misleading.
(b) except Blue Sky. The Company shall take such action, if any, as otherwise permitted is reasonably necessary in order to obtain an exemption for or to qualify (i) the initial sale of the Securities to the Buyer under this Agreement and (ii) any subsequent sale of the Securities by the Buyer, in each case, under applicable securities or “Blue Sky” laws of the Finance Documentsstates of the United States in such states as is reasonably requested by the Buyer from time to time, it and shall provide evidence of any such action so taken to the Buyer at its written request; provided, however, that the Company shall not sell, assign, transfer, charge, pledge be obligated to file any general consent to service of process or encumber to qualify as a foreign corporation or as a dealer in securities in any manner any part of the Pledged Collateral jurisdiction in which it is not so qualified or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security subject itself to taxation in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, doing business in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) jurisdiction in which it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall is not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementotherwise so subject.
Appears in 1 contract
Sources: Common Stock Purchase Agreement
Covenants. The Pledgor hereby covenants that during Company agrees with each of the continuance Underwriters of this Agreementany Designated Securities that:
(a) it shall warrant It will prepare the Statutory Prospectus and defend its title the Prospectus, as amended or supplemented in relation to the Pledged Collateralapplicable Designated Securities in a form approved by the Representatives and will file the Statutory Prospectus and the Prospectus pursuant to, and all material rights and within the security interest (including the priority thereoftime frame specified by, Rule 424(b) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Securities Act Regulations.
(b) except as otherwise permitted in this Agreement or The Company represents and agrees that, unless it obtains the Finance Documentsprior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Designated Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, required to be filed with the Commission; provided, however, that the Issuer Free Writing Prospectuses listed in Schedule III to the applicable Pricing Agreement shall not sellbe deemed consented to by the Representatives. Any such free writing prospectus consented to in writing, assignor deemed consented to, transferin accordance with the preceding sentence, chargeis referred to herein as a “Permitted Free Writing Prospectus”. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to each and every Permitted Free Writing Prospectus, pledge or encumber in any manner any part of including timely filing with the Pledged Collateral or suffer to exist any encumbrance on the Pledged CollateralCommission where required, other than Permitted Liens;legending and record keeping.
(c) it shall not take from The Company will prepare a final term sheet form relating to the final terms of the Designated Securities and their offering in the form specified in Schedule IV to the applicable Pricing Agreement (the “Final Term Sheet”) and, subject to the consent of the Representatives, will file such Final Term Sheet within the period required by Rule 433(d)(5)(ii). Any such Final Term Sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Notwithstanding anything to the contrary contained herein, the Company consents to the use by any undertaking Underwriter of a free writing prospectus that contains only (a)(i) information describing the preliminary terms of the Designated Securities or security their offering or (ii) information that describes the final terms of the Designated Securities or their offering and that is or is to be included in respect of its liability hereunder or in respect of any other liability the Final Term Sheet of the Company to contemplated above or (b) other customary information that is neither “issuer information,” as defined in Rule 433 under the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidationSecurities Act, or analogous proceedings under any applicable law, of the Pledgor;otherwise an Issuer Free Writing Prospectus.
(d) It will not make any amendment or supplement to the Registration Statement, the Prospectus or the General Disclosure Package after the Applicable Time relating to such Designated Securities and prior to the Time of Delivery for such Designated Securities that shall be disapproved by the Representatives for such Designated Securities promptly after reasonable notice thereof.
(e) It will advise the Representatives promptly of any such amendment or supplement after such Time of Delivery for such Designated Securities and will furnish the Representatives with copies thereof.
(f) It promptly will file all reports and any definitive proxy or information statements required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (or but for the exemption in Rule 172 would be required) in connection with the offering or sale of such Designated Securities, and during such same period it will advise the Representatives, promptly after it receives notice thereof, of:
(i) the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Statutory Prospectus or the Prospectus has been filed with the Commission;
(ii) the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Registration Statement or any prospectus relating to the Designated Securities;
(iii) the suspension of the qualification of such Designated Securities for offering or sale in any jurisdiction; and
(iv) the initiation or threatening of any proceeding for any such purpose or of any request by the Commission with respect to amending or supplementing the Registration Statement, Statutory Prospectus or Prospectus or for additional information and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Designated Securities or suspending any such qualification, promptly use its best efforts to obtain the withdrawal of such order.
(g) It promptly will take such action as the Representatives reasonably may request to qualify such Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representatives reasonably may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of such Designated Securities. In connection therewith, the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(h) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of the applicable Pricing Agreement and from time to time, it will deliver written and electronic copies of the Prospectus as amended or supplemented to the Underwriters in New York City, in such quantities as the Representatives reasonably may request. If the delivery of a prospectus is required (or but for the exemption in Rule 172 would be required) at any time in connection with the offering or sale of the Designated Securities and if at such time any event shall have occurred as a result of which the General Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or if for any other reason it shall be necessary during such same period to amend or supplement the Registration Statement, the General Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus in order to comply with the Securities Act, the Exchange Act or the Trust Indenture Act, the Company will notify the Representatives and upon their request will file such document and prepare and furnish without charge to Pledgee each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives from time to time statements and schedules further identifying and describing reasonably may request of an amended Registration Statement, the Pledged Collateral General Disclosure Package or Prospectus or a supplement to the Registration Statement or Prospectus that will correct such statement or omission or effect such compliance or filing, as Pledgee reasonably requests, all in reasonable detail;applicable.
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change It will make generally available to its securityholders as soon as practicable, but in any event not later than 18 months after the effective date of the location Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of Pledgor’s chief executive office, the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Securities Act Regulations.
(j) During the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the later of (i) the termination of trading restrictions for such Designated Securities as notified to the Company by the Representatives and (ii) change the last Time of Pledgor’s nameDelivery for such Designated Securities, identity it will not offer, sell, contract to sell or structure otherwise dispose of any debt securities that mature more than one year after such Time of Delivery and that are substantially similar to such Designated Securities, without the prior written consent of the Representatives.
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, DC time, on the date of this Agreement, and at the time of filing the Company shall either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or (iiigive irrevocable instructions for the payment of such fee pursuant to Rule 111(b) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementSecurities Act.
Appears in 1 contract
Sources: Underwriting Agreement (Horace Mann Educators Corp /De/)
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementwith each Underwriter as follows:
(a) it shall warrant Immediately following the execution of this Agreement, the Company will (x) prepare the Final Prospectus that complies with the Securities Act and defend its title the Securities Act Regulations and which sets forth the aggregate number of the Shares to be purchased, the name of each Underwriter participating in the offering and the aggregate number of the Shares that each severally, and not jointly, has agreed to purchase, the name of each Underwriter, if any, acting as Representative of the Underwriters in connection with the offering, the price at which the Shares are to be purchased by the Underwriters from the Company, the initial public offering of the Shares, any selling concession and reallowance, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Shares and (y) file all material required to be filed by the Company with the Commission pursuant to Rule 433(d) within the time required by such rule. The Company will promptly transmit copies of the Final Prospectus to the Pledged Collateral, Commission for filing pursuant to Rule 424 and all material rights and will furnish to the security interest (including the priority thereof) Underwriters as many copies of the Pledgee conferred Final Prospectus as you shall reasonably request. If requested by this Agreement in the Underwriters, the Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the offering and shall file with the Commission such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 on the date of first use, or if not possible to file on the date of first use, as soon as practicable thereafter; provided that the Company shall furnish the Underwriters with copies of 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 Underwriters or counsel to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Underwriters shall reasonably object.
(b) except as otherwise permitted During the period when a prospectus (or in this Agreement lieu thereof, a notice referred to in Rule 173(a) under the Securities Act (“Rule 173(a)”) relating to the Shares) is required to be delivered under the Securities Act or the Finance DocumentsSecurities Act Regulations, it shall not sellthe Company will promptly advise you of (i) the effectiveness of any amendment to the Registration Statement, assign(ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus or any document that would as a result thereof be incorporated by reference in the Final Prospectus, transfer(iii) any request by the Commission for any amendment of the Registration Statement or any amendment or supplement to the Final Prospectus or for any additional information relating thereto or to any document incorporated by reference therein, charge, pledge (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or encumber the institution or threatening of any proceeding for that purpose and (v) the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any manner jurisdiction or the institution or threatening of any part proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;withdrawal thereof.
(c) If, at any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, any event occurs as a result of which the General Disclosure Package or the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall not take from be necessary to amend or supplement the General Disclosure Package or the Final Prospectus to comply with the Securities Act or the Securities Act Regulations, the Company will promptly prepare and file with the Commission, subject to paragraph (d) of this Section 3, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and the Company will use its reasonable efforts to have any undertaking such amendment to the Registration Statement or security in new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect of its liability hereunder to the Shares). Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or in respect supplement shall constitute a waiver of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, conditions set forth in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Section 4 hereof.
(d) it At any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish you with copies of any such amendment or supplement or other documents proposed to be filed within a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which you shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;object.
(e) it shall give at least 30 days’ prior written The Company has furnished or will furnish, if requested, to the Representatives and their counsel, without charge, conformed copies of the Original Registration Statement and of all amendments thereto, whether filed before or after such Registration Statement originally became effective (including exhibits thereto and the documents incorporated therein by reference) and the copies of the Original Registration Statement and each amendment thereto furnished to the 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. So long as delivery of a Final Prospectus (or in lieu thereof, a notice referred to Pledgee in Rule 173(a)) by the Underwriters may be required by the Securities Act, the Company will furnish as many copies of any (i) change of Statutory Prospectus, the location of Pledgor’s chief executive officeFinal Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request and the Final Prospectus and any amendments or supplements thereto furnished to each Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, (ii) change of Pledgor’s name, identity except to the extent permitted by Regulation S-T or structure or (iii) reorganization or reincorporation of Pledgor required under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Rule 424(e).
(f) it The Company shall use its reasonable efforts, in cooperation with the Underwriters, to qualify the Shares for offering and sale under the applicable securities or “blue sky” laws of such jurisdictions in the United States as the Underwriters may reasonably designate and will maintain such qualifications in effect so long as required in connection with the distribution of the Shares; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any termination jurisdiction in which it is not so qualified or to subject itself to taxation in respect of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights doing business in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee any such jurisdiction in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andwhich it is not otherwise so subject.
(g) The Company shall use the proceeds received by it from the sale of the Shares in the manner to be indicated in the General Disclosure Package and the Final Prospectus under “Use of Proceeds.”
(h) An application for the listing of the Shares shall indemnify have been submitted to the Pledgee fromExchange.
(i) The Company, during the period when a Final Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)) relating to the Shares is required to be delivered, will file promptly all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
(j) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, including as contemplated by Section 3(a), and hold each Representative represents and agrees that, unless it harmless againstobtains the prior consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 or that would otherwise constitute a “free writing prospectus” as defined in Rule 405. Any such free writing prospectus, including any investor presentation on any “road show”, 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 as applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(k) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Original Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will use its best efforts to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Representatives. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, use its best efforts to file a new shelf registration statement relating to the Shares, in a form satisfactory to the Representatives and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all liabilities with respect other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement relating to the Shares. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
(l) The Company will make generally available to its security holders an earnings statement or statements of the Company which will satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(m) For a period of 30 days after the date hereof (the “Restricted Period”), the Company will not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or resulting from any delay in payingfile with, the Commission a registration statement under the Securities Act relating to, any and all stampshares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8 or any successor forms thereto, excise, sales or other taxes which may be payable or determined to be payable with respect relating solely to any of the Pledged Collateral employee benefit plans of the Company, as described in the Statutory Prospectus), or publicly disclose the intention to undertake any of the foregoing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or any such other securities or publicly disclose the intention to undertake any of the foregoing, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Representatives. Notwithstanding the foregoing, such limitations shall not apply to: (i) the Shares to be sold hereunder; (ii) any shares of Common Stock of the Company issued (or withheld) upon the exercise or conversion of any options, warrants or other securities or restricted stock units outstanding on the date hereof or other equity-based awards under existing equity compensation plans and incentive retention plans, each as described in the Statutory Prospectus; (iii) any options, restricted stock units or other equity-based awards granted under existing equity compensation plans and incentive retention plans; (iv) any warrants of the Company issued to the United States government, the U.S. Department of the Treasury or any similar agency under the Coronavirus Aid, Relief, and Economic Security Act, or any other similar government aid program (and any shares of Common Stock of the Company issued upon the exercise thereof); (v) the settlement of shares issued prior to the date hereof pursuant to the ATM Offering (as defined in the General Disclosure Package and the Final Prospectus); and (vi) any of the actions described in the above paragraph with respect to the issuance of up to 10% of outstanding shares of Common Stock of the Company (or any securities convertible into or exercisable or exchangeable for such shares) in connection with any acquisitions, strategic partnerships or other commercial relationships, provided that the transaction contemplated by recipient of any such issuances described in this Agreement.clause shall sign a lock-up agreement in the form attached hereto at Exhibit A.
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during Between the continuance of this Agreementdate hereof and the Closing, Seller agrees that:
(a) it shall warrant will maintain the Property in the same condition as it is on the date of this Contract (reasonable wear and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoevertear excepted);
(b) except as otherwise permitted in this Agreement it will not, by reason of any action or the Finance Documentsomission of Seller, it shall cause or permit any representation or warranty to become not selltrue, assign, transfer, charge, pledge incorrect or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liensinaccurate;
(c) it shall not take from the Company any undertaking or security in will make available to Buyer, for inspection, examination, review and copying, all engineering reports, environmental reports, title materials, plans and specifications and other materials of, for and with respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, Property which are in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the PledgorSeller's possession;
(d) it shall furnish will perform all material obligations with respect to Pledgee from time to time statements the Property under all easements, covenants, restrictions and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detailcontracts of record;
(e) it shall will promptly give at least 30 days’ prior written notice to Pledgee Buyer of every threatened or actual litigation whether or not covered by insurance against or relating to the Property (including, without limitation, the sale thereof to Buyer) or any (i) change portion thereof between the date of this Contract and the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1Closing;
(f) it shall not will not, without the prior written consent of Buyer, apply for, consent to or process any termination of applications for zoning, re-zoning, variances, site plan approvals, subdivision approvals or amendment development with respect to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement Property or any other Finance Document or their ability to exercise the sameportion thereof, or cause an Event of Default to occur; andany adjacent property;
(g) it shall indemnify will not, without the Pledgee fromprior written consent of Buyer, and hold sell all or any portion of the Property or any interest therein or dispose of or abandon either thereof;
(h) it harmless againstwill not, without the prior written consent of Buyer, grant any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales rights or other taxes which may be payable privileges in or determined to be payable with respect to the Property or any portion thereof or grant, or consent to or waive the right to object to, any easements, covenants or restrictions affecting all or any portion of the Pledged Collateral Property;
(i) it will not enter into any mortgages, operating contracts, ground leases, space leases or in connection other contracts or encumbrances with respect to or affecting the transaction contemplated Property or any portion thereof that will not be terminated, discharged or released prior to or at Closing;
(j) it will promptly notify Buyer if it discovers, determines or is notified that any warranty or representation made by this AgreementSeller hereunder is not (or is no longer) true; and
(k) it will make the Property available to Buyer and its agents, consultants and engineers for such inspections and tests or otherwise as Buyer deems appropriate.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Covenants. The Pledgor hereby Seller or SC, as the case may be, covenants that during the continuance of this Agreementand agrees with each Underwriter that:
(a) it shall warrant The Seller will prepare a Prospectus setting forth the amount of Notes covered thereby and defend its title the terms thereof, the price at which the Notes are to be purchased by the Underwriters from the Seller, the initial public offering price at which the Notes are to be sold, the selling concessions and allowances, if any, and such other information as the Seller deems appropriate in connection with the offering of the Notes, but the Seller will not file any amendments to the Pledged CollateralRegistration Statement as in effect with respect to the Notes, or any amendments or supplements to the Preliminary Prospectus, or the Prospectus, without the Representative’s prior written consent (which consent shall not be unreasonably withheld or delayed); the Seller will immediately advise the Underwriters and their counsel: (i) when notice is received from the Commission that any post-effective amendment to the Registration Statement has become or will become effective; (ii) when any supplement or amendment to the Preliminary Prospectus, the Prospectus or the Registration Statement has been filed; and (iii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Notes, or any prevention or suspension of the use of the Preliminary Prospectus or the Prospectus or of any proceedings or examinations that may lead to such an order or communication, whether by or of the Commission or any authority administering any state securities or Blue Sky law, as soon as practicable after the Seller is advised thereof, and will use its reasonable efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued.
(b) Within the time period during which a prospectus relating to the Notes is required to be delivered under the Act, the Seller has complied, or will comply, with all material rights requirements imposed upon it by the Act, the Exchange Act and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Notes, as contemplated by the provisions hereof and the security interest Prospectus. If, at any time when a Preliminary Prospectus or Prospectus relating to the Notes is required to be delivered under the Act (including or required to be delivered but for Rule 172 under the priority thereof) Act), any event occurs as a result of which the Preliminary Prospectus or Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Pledgee conferred circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the rules and regulations of the Commissioner thereunder, the Seller will promptly notify the Representative and promptly prepare and (subject to review and consent by this Agreement the Representative as described in and Section 5(a) hereof) file with the Commission, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; provided, however, that the Representative’s consent to any amendment shall not constitute a waiver or limitation of any right of any Underwriter hereunder.
(c) The Seller will make (or will cause the Issuer to make) generally available to the Pledged CollateralNoteholders (the sole Noteholder being the applicable clearing agency in the case of Book-Entry Notes (as defined in Appendix A to the Sale and Servicing Agreement)), in each case at as soon as practicable, a statement which will satisfy the cost provisions of Section 11(a) of the Pledgor against the claims Act and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part Rule 158 of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in Commission with respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and Notes; provided that this covenant may be satisfied by posting the Pledgor shall not prove nor have monthly Servicer’s Certificate for the right of proof, in competition Issuer on a publicly available website or filing such Servicer’s Certificates with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Commission on a Form 10-D.
(d) it shall Upon request, the Seller will furnish to Pledgee from time the Underwriters copies of the Registration Statement (at least one copy to time statements be delivered to the Underwriters will be conformed and schedules further identifying will include all documents and describing exhibits thereto or incorporated by reference therein), any Issuer Free Writing Prospectus, the Pledged Collateral Preliminary Prospectus, the Prospectus, and all amendments and supplements to such documents, in each case as Pledgee soon as available and in such quantities as the Underwriters may reasonably requests, all in reasonable detail;request.
(e) The Seller will assist the Underwriters in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Underwriters may designate and will continue to assist the Underwriters in maintaining such qualifications in effect so long as required for the distribution; provided, however, that neither the Seller nor the Issuer shall be required to qualify to do business in any jurisdiction where it shall give at least 30 days’ prior written notice is now not qualified or to Pledgee take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is now not subject to service of process or to file a general consent to service of process in any jurisdiction in which it is now not subject to service of process. The Seller will promptly advise the Underwriters of any notice of suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) If filing of any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any portion thereof is required under Rule 424(b), Rule 424(h) or Rule 433 of the Commission, the Seller will file such Issuer Free Writing Prospectus, Preliminary Prospectus or Prospectus, properly completed, and any supplement thereto, pursuant to Rule 424(b), Rule 424(h) or Rule 433, as applicable, within the prescribed time period and will provide evidence satisfactory to the Underwriters of such timely filing. The Seller (i) change will file all transaction agreements containing the provisions that are required by General Instructions I.B.1(b), I.B.1(c) and I.B.1(d) of Form SF-3 with the Commission no later than the date the Prospectus is required to be filed under Rule 424 of the location of Pledgor’s chief executive officeAct, (ii) change will timely file all certifications required by General Instruction I.B.1(a) of Pledgor’s name, identity or structure or Form SF-3 and (iii) reorganization has filed all material required to be filed by General Instruction I.A.2 for the use of a registration statement on Form SF-3 within the time periods required by Form SF-3, the Act or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents rules and regulations of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andCommission thereunder.
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to So long as any of the Pledged Collateral Notes are outstanding, the Seller or SC, as applicable, will make available to the Underwriters, as soon as practicable, all documents required to be distributed to the Noteholders.
(h) The Seller and SC will apply the net proceeds from the sale of the Notes as set forth in the Prospectus.
(i) SC will comply, and will cause the Seller to comply, with the 17g-5 Representation.
(j) SC will comply, and will cause each of its affiliates to comply, with the Credit Risk Retention Rules, as in effect from time to time, in connection with the transaction contemplated by this AgreementSantander Drive Auto Receivables Trust 2022-3 transaction.
Appears in 1 contract
Sources: Underwriting Agreement (Santander Drive Auto Receivables Trust 2022-3)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this Agreementseveral Underwriters as follows:
(a) During the period beginning on the date hereof and ending on the later of the Second Closing Date and such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered (assuming the absence of Rule 172 under the Securities Act), in connection with sales by an Underwriter (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462(b) Registration Statement, the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Underwriters for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Representative or counsel to the Underwriters reasonably objects. Subject to this Section 4(a), immediately following execution of this Agreement, the Company will prepare the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the Representative and the Company may deem appropriate, and if requested by the Representative, an Issuer Free Writing Prospectus containing the selling terms of the Securities and such other information as the Company and the Representative may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each Issuer Free Writing Prospectus.
(b) The Company will advise the Representative, promptly after it shall warrant receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto, or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and defend the Company will promptly use its title best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A or 430B, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(A) During the Prospectus Delivery Period, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event shall occur as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) to comply with the Securities Act or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(B) 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 Statutory Prospectus or the Prospectus relating to the Pledged CollateralSecurities 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 promptly will notify the Representative 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.
(d) The Company shall take or cause to be taken all necessary action to qualify the Securities for sale under the securities laws of such jurisdictions as the Representative shall reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.
(e) The Company will furnish or make available to the Underwriters and counsel for the Underwriters, at the Company’s expense, copies of the Registration Statement (which will include three complete manually signed copies of the Registration Statement and all consents and exhibits filed therewith), and to the Underwriters and any dealer each Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, the Issuer Free Writing Prospectus, and all material rights amendments and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and supplements to the Pledged Collateralsuch documents, in each case at as soon as available and in such quantities as the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee Representative may from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;request.
(f) it shall not consent to any termination During a period of five years commencing with the date hereof, the Company will furnish or amendment make available to the Organizational Documents or other organizational documents Underwriters, upon receipt of a written request therefor, copies of all periodic and special reports furnished to the stockholders of the Company that could reasonably be expected to adversely affect and all information, documents and reports filed with the Pledged CollateralCommission, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement FINRA or any securities exchange (other Finance Document than any such information, documents and reports that are filed with the Commission electronically via ▇▇▇▇▇ or their ability to exercise the same, or cause an Event of Default to occur; andany successor system).
(g) it The Company will make generally available to its security holders as soon as practicable, but in no event later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall indemnify satisfy the Pledgee fromprovisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(h) The Company, and hold it harmless againstwhether or not the transactions contemplated hereunder are consummated or this Agreement is otherwise terminated, any and all liabilities with respect to, will pay or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined cause to be payable with respect paid (A) all expenses (including transfer taxes allocated to any of the Pledged Collateral or respective transferees) incurred in connection with the transaction delivery to the Underwriters of the Securities, (B) all expenses and fees (including, without limitation, fees and expenses of the Company’s accountants and counsel, but excluding, for the avoidance of doubt, reasonable fees and disbursements of Underwriters’ counsel, which shall be paid pursuant to clause (I) below) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, each Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment thereof or supplement thereto, and the printing, delivery, and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions), (C) all reasonable filing fees and reasonable fees and disbursements of the Underwriters’ counsel incurred in connection with the qualification of the Securities for offering and sale by the Underwriters or by dealers under the securities or blue sky laws of the states and other jurisdictions which the Representative shall designate, (D) the fees and expenses of any transfer agent or registrar, (E) the reasonable filing fees and fees and disbursements of Underwriters’ counsel incident to any required review and approval by FINRA of the terms of the sale of the Securities, (F) listing fees, if any, (G) the costs and expenses of the Company relating to investor presentations or any “roadshow” undertaken in connection with the marketing of the Securities, (H) all other costs and expenses of the Company incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein and (I) all other costs and expenses of the Underwriters (including reasonable fees and disbursements of counsel) incident to the performance of its obligations hereunder not otherwise specifically provided for herein, provided however such costs and expenses provided for in this clause (I) shall not exceed $100,000 in the aggregate. The Company shall not in any event be liable to the Underwriters for loss of any anticipated profits from the transactions contemplated by this Agreement.
(i) The Company intends to apply the net proceeds from the sale of the Securities to be sold by it hereunder for the purposes set forth in the Time of Sale Disclosure Package and in the Prospectus.
(j) The Company will not, without the prior written consent of the Representative, from the date of execution of this Agreement and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), (A) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (B) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, except for (A) sales of the Securities to the Underwriters pursuant to this Agreement, (B) grants of options or the issuance of shares of Common Stock or other equity awards by the Company pursuant to existing equity incentive plans, as such plans may be amended, restated, replaced or consolidated, (C) issuance of shares upon exercise or conversion of securities outstanding as of the date hereof and (D) any issuance of options to consultants of the Company in the ordinary course of business. The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period. If
(1) during the last 17 days of the Lock-Up Period, (a) the Company issues an earnings release, (b) the Company publicly announces material news or (c) a material event relating to the Company occurs; or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions in this Agreement, unless otherwise waived by the Representative in writing, shall continue to apply until the expiration of the date that is 18 calendar days after the date on which (a) the Company issues the earnings release, (b) the Company publicly announces material news or (c) a material event relating to the Company occurs; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act, and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. The Company will provide the Representative and each person subject to the Lock-Up Agreement (as defined below) with prior notice of any such announcement that gives rise to the extension of the Lock-Up Period.
(k) The Company has caused to be delivered to the Representative prior to the date of this Agreement a letter, in the form of Exhibit A hereto (the “Lock-Up Agreement”), from each of the Company’s directors, officers and stockholders identified on Schedule V. The Company will issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(l) The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and has not effected any sales of Common Stock which are required to be disclosed in response to Item 701 of Regulation S-K under the Securities Act which have not been so disclosed in the Registration Statement.
(m) Other than as contemplated by this Agreement, the Company will not incur any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(n) During the Prospectus Delivery Period, the Company will file with the Commission such periodic and special reports as required by the Rules and Regulations.
(o) The Company and Derma Canada will maintain such controls and other procedures, including without limitation those required by Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to the Company is made known to them by others within those entities.
(p) The Company shall pay or cause to be paid to ▇▇▇▇ Capital Partners, LLC a financial advisory fee of $100,000 as described in the Prospectus.
(q) The Company will comply in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(r) The Company represents and agrees that, unless it obtains the prior written consent of the Representative, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required to be filed with the Commission; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II. Any such free writing prospectus consented to by the Company and the Representative 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
Appears in 1 contract
Covenants. The Pledgor hereby Maker covenants that during and agrees that, until the continuance of Total Amount owing under this Agreement:Note has been paid in full,
(a) it shall warrant and defend its title Maker will deliver to the Pledged CollateralHolder a copy of Maker’s annual consolidated financial statements, including balance sheet, statement of income, and all material rights and statement of cash flows, reviewed by independent certified public accountants acceptable to Holder no later than ninety (90) days after the security interest (including the priority thereof) end of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost fiscal year of the Pledgor against the claims and demands of all persons whomsoever;Maker,
(b) except as otherwise permitted in this Agreement or the Finance DocumentsMaker will deliver a copy of Maker’s unaudited (internally prepared) quarterly consolidated financial statements, it shall not sellincluding balance sheet, assignstatement of income, transferand statement of cash flows, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other Holder no later than Permitted Liens;sixty (60) days following each calendar quarter end,
(c) it shall not take from Maker will not, without the Company prior written consent of Holder, pay, distribute or authorize any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Restricted Payment,
(d) Maker will not, without the prior written consent of Holder, issue any additional ownership interests in or other Equity Interests of or in Maker other than those that by their terms will be subject to the Parent Pledge,
(e) Maker will give Holder (i) prompt written notice of any amendment, modification or waiver of the Senior Loan Documents or provisions thereof and (ii) prompt written notice following the maturity of the indebtedness under the Senior Loan Documents being accelerated for any reason, including as a result of occurrence of any event of default under the Senior Loan Documents,
(f) Maker will maintain its legal existence and good standing in its respective jurisdiction of formation and maintain qualification in each jurisdiction in which it shall furnish is required to Pledgee be qualified,
(g) Maker will incur no liabilities for borrowed money other than such liabilities owed to Senior Lender,
(h) Maker will grant no liens on its assets to any party other than Holder and Senior Lender,
(i) Maker will not, without the prior written consent of Holder, (x) directly or indirectly enter into or permit to exist any transaction with any affiliate of Maker, except for transactions that are made in the ordinary course of business on fair and reasonable terms that are no less favorable to Maker than would be obtained in an arm’s length transaction with a non-affiliated person, or (y) pay, distribute or authorize any compensation or other payments to officers, directors or employees of Maker except for such amounts that are in the ordinary course of business and on fair and reasonable terms, and
(j) Holder will have the right, while any Obligations remain outstanding hereunder, (i) to appoint a representative designated by Holder from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, to attend all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change meetings of the location Board of Pledgor’s chief executive office, Directors of Parent as a non-voting observer; and (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the to receive all information specified in Part B of Schedule 1;
(f) it shall not consent distributed by Parent to any termination of or amendment to the Organizational Documents or other organizational documents voting members of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority Board of the security interests Directors of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementParent.
Appears in 1 contract
Sources: Asset Purchase Agreement (Stanley Furniture Co Inc.)
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance of this AgreementUnderwriters that:
(a) The Company will cause the Prospectus Supplement to be filed as required by Section 2(a) hereof (but only if the Underwriters or their counsel have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify the Underwriters promptly of such filing. During the period in which a prospectus relating to the Securities is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriters promptly of the time when any subsequent amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed, of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriters' request, any amendments or supplements to the Registration Statement or Prospectus that, in the Underwriters' opinion, may be necessary or advisable in connection with the Underwriters' distribution of the Securities; and the Company will file no amendment or supplement to the Registration Statement or Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document required to be filed under the Exchange Act that upon filing is deemed to be incorporated by reference therein) to which the Underwriters or their counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriters, promptly after it shall warrant receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification or registration of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and defend it will promptly use its title best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c) The Company will comply with all requirements imposed upon it by the Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Securities as contemplated by the provisions hereof and the Prospectus. If during such period where a prospectus relating to the Pledged CollateralSecurities is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, any event occurs as a result of which, in the opinion of Underwriters' counsel, the Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Act, the Company will promptly notify the Underwriters and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will furnish to the Underwriters copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein), each preliminary prospectus and all material rights amendments and supplements to the security interest Registration Statement and Prospectus that are filed with the Commission during the period in which a prospectus relating to the Securities is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later (including all documents filed with the priority thereof) of the Pledgee conferred Commission during such period that are deemed to be incorporated by this Agreement in and to the Pledged Collateralreference therein), in each case at as soon as available and in such quantities as the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee Underwriters may from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;request.
(e) During the period of one year commencing on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Act, the Company will furnish the Underwriters with copies of filings of the Company under the Act and Exchange Act and with all other financial statements and periodic and special reports it distributes generally to the holders of its capital stock.
(f) The Company will make generally available to its security holders as soon as practicable, and in the manner contemplated by Rule 158 of the 1933 Act Rules and Regulations but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earning statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Act that shall give at least 30 days’ prior written notice satisfy the provisions of Section 11(a) of the Act and Rule 158 of the 1933 Act Rules and Regulations and will advise the Underwriters in writing when such statement has been made available.
(g) Whether or not the transactions contemplated by this Underwriting Agreement are consummated or this Underwriting Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to Pledgee the performance of any the obligations of the Company under this Underwriting Agreement, including but not limited to costs and expenses of or relating to (i) change the preparation, printing and filing of the location of Pledgor’s chief executive officeRegistration Statement and exhibits thereto, each preliminary prospectus, the Prospectus and any amendment or supplement to the Registration Statement or the Prospectus, (ii) change the preparation and delivery of Pledgor’s namecertificates representing the Securities, identity or structure or (iii) reorganization the word processing, printing and reproduction of this Underwriting Agreement, (iv) the costs incurred by the Company in furnishing (including costs of shipping, mailing and courier) such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Securities by the Underwriters or reincorporation by dealers to whom Securities may be sold, (v) the listing of Pledgor the Securities on the NYSE, (vi) the registration or qualification of the Securities for offer and sale under the securities or blue sky laws of another jurisdictionsuch jurisdictions designated by the Underwriters, including the fees, disbursements and other charges of Underwriters' counsel in each case from connection therewith, and the information specified in Part B preparation and printing of Schedule 1;a blue sky memoranda, (vii) counsel to the Company, (viii) the transfer agent for the Securities and (ix) the accountants of the Company.
(fh) it If this Underwriting Agreement shall not consent be terminated pursuant to any termination of or amendment to the Organizational Documents or other organizational documents of the provisions hereof or if for any reason the Company that could shall be unable to perform its obligations hereunder, the Company will reimburse the Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of Underwriters' counsel) reasonably incurred by the Underwriters in connection herewith.
(i) The Company will not at any time, directly or indirectly, take any action designed to, or which might reasonably be expected to, cause or result in, or which has constituted or which might reasonably be expected to adversely affect the Pledged Collateralconstitute, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority stabilization of the security interests price of its capital stock to facilitate the Pledgee in the Pledged Collateral, the rights and remedies sale or resale of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or Securities.
(j) The Company will apply the net proceeds from the sale of the Securities as set forth under the caption "Use of Proceeds" in connection the Prospectus Supplement.
(k) Commencing with its taxable year ending December 31, 1988, the transaction contemplated by this AgreementCompany has elected to, and continues to, qualify as a "real estate investment trust" under the Code, and will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust."
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during Until such time as no shares of Series E Stock remain outstanding, the continuance of this AgreementCorporation will at all times comply with the following covenants:
(a) it shall warrant and defend its title The Corporation will timely file on the applicable deadline all reports required to be filed with the Pledged Collateral, and all material rights and the security interest (including the priority thereofSEC pursuant to Sections 13 or 15(d) of the Pledgee conferred by this Agreement in Exchange Act, and will take all reasonable action under its control to ensure that adequate current public information with respect to the Pledged CollateralCorporation, as required in each case at the cost accordance with Rule 144 of the Pledgor against Securities Act, is publicly available, and will not terminate its status as an issuer required to file reports under the claims Exchange Act even if the Exchange Act or the rules and demands of all persons whomsoever;regulations thereunder would permit such termination.
(b) except as otherwise permitted in this Agreement The Common Stock will be listed or quoted for trading on any of the New York Stock Exchange, NYSE American or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;Nasdaq Stock Market.
(c) it shall After the initial issuance of Series E Stock, the Corporation will not take from issue any new shares of Series E Stock without the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability prior written consent of the Company to Required Holders, which consent may be granted or withheld in the Pledgor Required Holders’ sole and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;absolute discretion.
(d) it shall furnish to Pledgee from time to time statements The Corporation will not increase the authorized shares of Common Stock or Series E Stock without the prior written consent of the Required Holders, which consent may be granted or withheld in the Required Holders’ sole and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;absolute discretion.
(e) it shall give at least 30 days’ prior written notice to Pledgee of any Except for (i) change a customary chill or similar restriction imposed in connection with a reverse split of the location of PledgorCompany’s chief executive officeCommon Stock, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization any suspension, halt, chill, freeze, or reincorporation cessation of Pledgor under trading resulting from events outside the laws reasonable control of another jurisdictionthe Corporation (including, without limitation, temporary trading halts imposed in each case from connection with volatile trading, force majeure events, technical failures, or market-wide trading halts), the information specified Corporation will ensure that trading in Part B of Schedule 1;the Common Stock will not be suspended, halted, chilled, frozen, reach zero bid or otherwise cease trading on the Corporation’s principal trading market.
(f) it shall The Corporation will not make any Restricted Issuance other than an Exempt Issuance without the Required Holders’ prior written consent, which consent to any termination of may be granted or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights withheld in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights Required Holders’ sole and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andabsolute discretion.
(g) it The Corporation shall indemnify not enter into or extend any agreement or otherwise agree to any covenant, condition, or obligation that locks up, restricts in any way or otherwise prohibits the Pledgee fromCorporation (i) from entering into a variable rate transaction with any Series E Holder or any Affiliate of any Series E Holder, or (ii) from issuing Common Stock, Preferred Stock, warrants, convertible notes, other debt securities, or any other of the Corporation’s securities to any Series E Holder or any Affiliate of any Series E Holder.
(h) The Corporation will not pledge or grant a security interest in any of its assets material assets outside the ordinary course of business without the Required Holders’ prior written consent, which consent may be granted or withheld in the Required Holders’ sole and absolute discretion.
(i) The Corporation will not, and hold it harmless against, will not enter into any and all liabilities with respect agreement or commitment to, dispose of assets or resulting from any delay in payingoperations that are material to the Corporation’s operations, any and all stamptaken as a whole, exciseoutside the ordinary course of business, sales or other taxes without the Required Holders’ prior written consent, which consent may be payable granted or determined to be payable with respect to any withheld in the Required Holders’ sole and absolute discretion. Notwithstanding the foregoing, the Corporation may dispose of obsolete, worn-out, or surplus property, or make sales of inventory in the Pledged Collateral or ordinary course of business, without such consent.
(j) Except in connection with satisfaction of a deficiency notice from the transaction contemplated by this AgreementPrincipal Market, the Corporation will not, and will not enter into any agreement or commitment to, undertake or complete any reverse split of any class of Common Stock or Preferred Stock without the Required Holders’ prior written consent, which consent may be granted on withheld in the Required Holders’ sole and absolute discretion.
(k) The Corporation will not, and will not enter into any agreement or commitment to, create, authorize, or issue any new class or series of Preferred Stock without the Required Holders’ prior written consent, which consent may be granted or withheld in the Required Holders’ sole and absolute discretion.
(l) The Corporation will not consummate a Fundamental Transaction or enter into an agreement to consummate a Fundamental Transaction without the Required Holders’ prior written consent, which consent may be granted on withheld in the Required Holders’ sole and absolute discretion. Notwithstanding the foregoing, no such consent shall be required for any merger, consolidation, or sale of assets in which the Series E Shares are redeemed or converted in full in connection with such Fundamental Transaction.
Appears in 1 contract
Sources: Securities Purchase Agreement (20/20 Biolabs, Inc.)
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementwith each Underwriter as follows:
(a) it shall warrant Immediately following the execution of this Agreement, the Company will (x) prepare the Final Prospectus that complies with the Securities Act and defend its title the Securities Act Regulations and which sets forth the face amount of the Certificates and their terms not otherwise specified in the basic prospectus relating to all offerings of pass through certificates under the Registration Statement, the name of each Underwriter participating in the offering and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance, and such other information as you and the Company deem appropriate in connection with the offering of the Certificates and (y) file all material required to be filed by the Company with the Commission pursuant to Rule 433(d) within the time required by such rule. The Company will promptly transmit copies of the Final Prospectus to the Pledged Collateral, Commission for filing pursuant to Rule 424 and all material rights and will furnish to the security interest (including the priority thereof) Underwriters as many copies of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;Final Prospectus as you shall reasonably request.
(b) except During the period when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a) under the Securities Act (“Rule 173(a)”) relating to the Certificates is required to be delivered under the Securities Act, the Company will promptly advise you of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus or any document that would as otherwise permitted a result thereof be incorporated by reference in this Agreement the Final Prospectus, (iii) any request by the Commission for any amendment of the Registration Statement or any amendment or supplement to the Final Prospectus or for any additional information relating thereto or to any document incorporated by reference therein, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the Finance Documentsinstitution or threatening of any proceeding for that purpose, it shall not sell, assign, transfer, charge, pledge or encumber and (v) the receipt by the Company of any notification with respect to the suspension of the qualification of the Certificates for sale in any manner jurisdiction or the institution or threatening of any part proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;withdrawal thereof.
(c) If, at any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Certificates is required to be delivered under the Securities Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall not take from be necessary to amend or supplement the Final Prospectus to comply with the Securities Act or the Securities Act Regulations, the Company promptly will prepare and file with the Commission, subject to paragraph (d) of this Section 3, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance and the Company will use its reasonable efforts to have any undertaking such amendment to the Registration Statement or security in new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect of its liability hereunder to the Certificates). Neither the Representative’s consent to, nor the Underwriters’ delivery of, any such amendment or in respect supplement shall constitute a waiver of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, conditions set forth in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Section 4 hereof.
(d) it At any time when a prospectus (or in lieu thereof, a notice referred to in Rule 173(a)) relating to the Certificates is required to be delivered under the Securities Act or the Securities Act Regulations, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish you with copies of any such amendment or supplement or other documents proposed to be filed within a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which you shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;object.
(e) it shall give at least 30 days’ prior written The Company has furnished or will furnish, if requested, to the Representative and its counsel, without charge, conformed copies of the Original Registration Statement and of all amendments thereto, whether filed before or after such Registration Statement originally became effective (including exhibits thereto and the documents incorporated therein by reference) and the copies of the Original Registration Statement and each amendment thereto furnished to the 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. So long as delivery of a Final Prospectus (or in lieu thereof, a notice referred to Pledgee in Rule 173(a)) by the Underwriters may be required by the Securities Act, the Company will furnish as many copies of any (i) change of Statutory Prospectus, the location of Pledgor’s chief executive officeFinal Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request and the Final Prospectus and any amendments or supplements thereto furnished to each Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, (ii) change of Pledgor’s name, identity except to the extent permitted by Regulation S-T or structure or (iii) reorganization or reincorporation of Pledgor required under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Rule 424(e).
(f) it The Company shall use its reasonable efforts, in cooperation with the Underwriters, to qualify the Certificates for offering and sale under the applicable securities laws of such states in the United States as the Underwriters may reasonably designate and will maintain such qualifications in effect so long as required in connection with the distribution of the Certificates; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any termination jurisdiction in which it is not so qualified or to subject itself to taxation in respect of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights doing business in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee any such jurisdiction in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andwhich it is not otherwise so subject.
(g) The Company shall use the proceeds received by it from the sale of the Equipment Notes in the manner to be indicated in the Final Prospectus under “Use of Proceeds.”
(h) The Company shall indemnify cooperate with the Pledgee fromUnderwriters and use its reasonable efforts to permit the Certificates to be eligible for clearance and settlement through the facilities of DTC.
(i) The Company, during the period when a Final Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)) relating to the Certificates is required to be delivered, will file promptly all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
(j) The Company represents and agrees that, unless it obtains the prior consent of each Underwriter, and hold each Underwriter represents and agrees that, unless it harmless againstobtains the prior consent of the Company, it has not made and will not make any offer relating to the Certificates that would constitute an “issuer free writing prospectus,” as defined in Rule 433 or that would otherwise constitute a “free writing prospectus” as defined in Rule 405. Any such free writing prospectus consented to by the Company and all liabilities the Underwriters 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 respect tothe requirements of Rule 433 as applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(k) Between the date of this Agreement and the Closing Time, the Company will not, without the Representative’s prior consent, offer, sell or resulting from enter into any delay in paying, agreement to sell any and all stamp, excise, sales public debt securities registered under the Securities Act (other than the Certificates) or other taxes any debt securities which may be payable or determined to be payable with respect to sold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A under the Securities Act and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act.
(l) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Original Registration Statement, any of the Pledged Collateral Certificates remain unsold by the Underwriters, the Company will use its best efforts to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Certificates, in a form satisfactory to the Representative. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, use its best efforts to file a new shelf registration statement relating to the Certificates, in a form satisfactory to the Representative and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Certificates to continue as contemplated in connection with the transaction contemplated by this Agreementexpired registration statement relating to the Certificates. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during set forth in Sections 3.2 and 3.8 (including any definitions relating thereto, but excluding clause (7) of Section 3.8 of the continuance PIK Notes) of this Agreementthe PIK Notes are incorporated herein in their entirety as if originally stated herein. In addition:
(a) it shall warrant and defend its title to Any issuance tax in respect of the Pledged Collateral, and all material rights issuance of certificate for Units upon exercise of this Warrant or other cost incurred by the Company in connection with such exercise and the security interest related issuance of Units shall be paid by the Company or Holder, whichever is legally obligated to make such payment. In the event it is not clear whether Company or Holder is legally obligated to make such payment, Company and Holder shall each pay fifty percent (including the priority thereof50%) of the Pledgee conferred by this Agreement in such issuance taxes and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;costs.
(b) except as otherwise permitted in this Agreement or the Finance Documents, it The Company shall not sell, assign, transfer, charge, pledge close its books against the transfer of this Warrant or encumber of any Unit issued or issuable upon the exercise of this Warrant in any manner any part which interferes with the timely exercise of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;this Warrant.
(c) it The Company shall not take from the Company assist and cooperate with any undertaking Holder required to make any governmental filings or security in respect of its liability hereunder obtain any governmental approvals prior to or in respect connection with any exercise of this Warrant (including, without limitation, making any other liability of filings required to be made by the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Company).
(d) it Notwithstanding any other provision hereof, if an exercise of any portion of this Warrant is to be made in connection with Drag/Tag Transaction or pursuant to Section 6.4 hereof, the exercise of any portion of this Warrant may, at the election of the Holder, be conditioned upon the consummation of such Drag/Tag Transaction or the initial public offering and in either case such exercise shall furnish not be deemed to Pledgee from time to time statements and schedules further identifying and describing be effective until the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;consummation of such transaction.
(e) it The Company shall give at least 30 days’ prior written notice all times reserve and keep available out of its authorized but unissued Units solely for the purpose of issuance upon the exercise of this Warrant, such number of Units issuable upon the exercise of this Warrant. All Units which are so issuable shall, when issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges. The Company shall take all such actions as may be necessary to Pledgee assure that all Units may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which Units may be listed (i) change except for official notice of issuance which shall be immediately delivered by the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in Company upon each case from the information specified in Part B of Schedule 1;
(f) it such issuance). The Company shall not consent to take any termination action which would cause the number of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined authorized but unissued Units to be payable with respect less than the number of such Units required to any be reserved hereunder for issuance upon exercise of the Pledged Collateral or in connection with the transaction contemplated by this AgreementWarrant.
Appears in 1 contract
Sources: Contribution and Equity Interest Purchase Agreement (Conagra Foods Inc /De/)
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer covenants and agrees with the several Underwriters that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations a Prospectus in a form approved by this Agreement the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430B of the Rules and Regulations, (ii) not file any amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in each case at writing or which is not in compliance with the cost Rules and Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Pledgor against Prospectus and prior to the claims and demands termination of all persons whomsoever;the offering of the Shares by the Underwriters.
(b) except as otherwise permitted in this Agreement or The Issuer, without the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part prior consent of the Pledged Collateral Representatives, will not distribute any prospectus or suffer other offering material (including, without limitation, any offer relating to exist any encumbrance the Shares that would constitute an Issuer Free Writing Prospectus and content on the Pledged CollateralIssuer’s website that may be deemed to be a prospectus or other offering material) in connection with the offering and sale of the Shares, other than Permitted Liens;the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer and the Representatives, it will not make, any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and the Representatives is listed on Schedule III hereto. The Issuer has complied and will comply with the requirements of Rule 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, any Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
(c) The Issuer will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Issuer.
(d) After the date of this Agreement, the Issuer shall promptly advise the Representatives in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iii) of the time and date that any post-effective amendment to the Registration Statement becomes effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. The Issuer shall use its commercially reasonable efforts to prevent the issuance of any such stop order or notice of prevention or suspension of such use. If the Commission shall enter any such stop order or issue any such notice at any time, the Issuer will use its commercially reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest possible moment. Additionally, the Issuer agrees that it shall not take comply with the provisions of Rules 424(b) and 430B, as applicable, of the Rules and Regulations, including with respect to the timely filing of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Issuer under such Rule 424(b) of the Rules and Regulations were received in a timely manner by the Commission.
(e) The Issuer will cooperate with the Representatives in endeavoring to qualify the Shares for sale under or obtain exemptions from the Company application of the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided, that the Issuer shall not be required to (i) qualify as a foreign corporation in any undertaking jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. The Issuer will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Issuer shall use its commercially reasonable efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) The Issuer will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Issuer will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Issuer will deliver to the Representatives at or before the Closing Date, upon request, conformed copies of the Registration Statement and all amendments thereto (including all exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof).
(g) The Issuer will comply with the Securities Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder and the rules and regulations of the New York Stock Exchange, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event or development shall occur or condition exist as a result of which the Prospectus or the Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Prospectus or the Disclosure Package, in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Representatives it is otherwise necessary to amend or supplement the Registration Statement, the Prospectus or the Disclosure Package, or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or Exchange Act or with a request from the Commission, in order to comply with law, including in connection with the delivery of the Prospectus, the Issuer agrees to (i) notify the Representatives of any such event, development or condition and (ii) promptly prepare (subject to Section 4(a) hereof), file with the Commission (and use its commercially reasonable efforts to have any amendment to the Registration Statement to be declared effective) and furnish at its own expense to the Underwriters and to any dealers identified by the Representatives, amendments or supplements to the Registration Statement, the Prospectus or the Disclosure Package necessary in order to make the statements in the Prospectus or the Disclosure Package as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Prospectus or the Disclosure Package, as amended or supplemented, will comply with law.
(h) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, an earning statement (which need not be audited) in respect reasonable detail, covering a period of its liability hereunder at least 12 consecutive months beginning after the Effective Date, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(i) The Issuer covenants and agrees that it will not, without the prior written consent of each of the Representatives. (which consent may be withheld in their sole discretion), directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), grant any option, right or warrant to purchase, pledge, transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, lend or otherwise dispose of any shares of Common Stock, options, rights or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock, including, without limitation, entering into any swap or other arrangement that transfers, in whole or in part, the economic consequences of the ownership of Common Stock, or announce the offering of, or file any registration statement under the Securities Act in respect of any other liability shares of Common Stock, options or warrants to acquire Common Stock or securities exchangeable or exercisable for or convertible into Common Stock, or publicly announce an intention to do any of the Company foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date 90 days after the date of the final prospectus relating to the Pledgor and offering (the Pledgor shall not prove nor have “Restricted Period”), other than: (i) the right Shares to be sold hereunder; (ii) grants of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company options or other purchase rights or shares of Common Stock pursuant to the PledgorIssuer Stock Plans; provided, in any insolvency that such securities will not vest or liquidationbecome exercisable, or analogous proceedings under any as applicable law(other than grants of shares of Common Stock to special board advisors pursuant to Issuer Stock Plans), of during the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing Restricted Period without the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 daysRepresentatives’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or consent; (iii) reorganization issuances of shares of Common Stock or reincorporation securities convertible into or exercisable or exchangeable for shares of Pledgor under Common Stock pursuant to the laws exercise of another jurisdictionwarrants, options or other convertible or exchangeable securities, including shares of convertible preferred stock, in each case from case, which are outstanding on the information specified in Part B date hereof; or (iv) any registration statement on Form S-8 or any similar or successor form relating to an offering of Schedule 1;securities solely to the Issuer’s or its Subsidiaries’ employees.
(fj) it shall not consent The Issuer will use its commercially reasonable efforts to any termination list, subject to notice of or amendment issuance, the Shares, and cause the shares to be admitted and authorized for trading, on the New York Stock Exchange.
(k) The Issuer has caused each of the persons listed on Schedule II hereto, to furnish to the Organizational Documents Representatives, on or prior to the date of this Agreement, a letter or letters, substantially in the form of Exhibit C hereto, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Issuer or other organizational documents capital stock of the Company that could reasonably be expected to adversely affect the Pledged CollateralIssuer, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document securities convertible, exchangeable or their ability to exercise exercisable for Common Stock or derivative of Common Stock owned by such person or request the same, registration for the offer or cause an Event sale of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral foregoing (or in connection as to which such person has the right to direct the disposition of) for a period of 60 days after the date of this Agreement, directly or indirectly, except with the transaction contemplated prior written consent of the Representatives (“Lock-up Agreements”).
(l) The Issuer shall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package.
(m) The Issuer shall not invest, or otherwise use the proceeds received by it from the sale of the Shares in such a manner as would require the Issuer or any of its Subsidiaries to, and will take such steps as necessary to ensure that neither the Issuer nor any of its Subsidiaries is required to, register as an investment company under the ▇▇▇▇ ▇▇▇.
(n) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
(o) The Issuer will use its commercially reasonable efforts to do or perform all things required to be done or performed by it prior to the Closing Date or Option Closing Date, as the case may be, to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement.
Appears in 1 contract
Sources: Equity Underwriting Agreement (Matador Resources Co)
Covenants. The Pledgor hereby ERP covenants that during with you, and with each Underwriter participating in the continuance offering of this Agreement:Underwritten Securities, as follows.
(a) it shall warrant Immediately following the execution of the applicable Terms Agreement, ERP will prepare a Prospectus Supplement setting forth the principal amount of Underwritten Securities covered thereby and defend its title their terms not otherwise specified in the Prospectus or the Indenture pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from ERP, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and ERP deem appropriate in connection with the offering of the Underwritten Securities; and ERP will promptly transmit copies of the Prospectus Supplement to the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission for filing pursuant to Rule 424(b) of the Pledgee conferred 1933 Act Regulations within the time period required by this Agreement in such Rule and will furnish to the Pledged CollateralUnderwriters named therein as many copies of the Prospectus and such Prospectus Supplement as you shall reasonably request. If, in each case at the cost time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the Pledgor against 1933 Act Regulations, then immediately following execution of the claims applicable Terms Agreement, ERP will prepare, and demands file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), including all persons whomsoever;information so omitted.
(b) except as otherwise permitted ERP will notify you immediately, and confirm such notice in this Agreement writing, of (i) the effectiveness of the Registration Statement and any amendment thereto, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the Finance Documentsinitiation of any proceedings for that purpose; and ERP will make every reasonable effort to prevent the issuance of any such stop order and, it shall not sellif any stop order is issued, assign, transfer, charge, pledge or encumber in any manner any part of to obtain the Pledged Collateral or suffer to exist any encumbrance on lifting thereof at the Pledged Collateral, other than Permitted Liens;earliest possible moment.
(c) it shall not take At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, ERP will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which ERP proposes for use by you in connection with the offering of Underwritten Securities which differs from the Company any undertaking Prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or security in respect not such revised prospectus is required to be filed pursuant to Rule 424(b) of its liability hereunder the 1933 Act Regulations), whether pursuant to the 1933 Act, 1934 Act or in respect otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file or prepare any such amendment or supplement or other liability of documents in a form to which you or counsel for the Company to the Pledgor and the Pledgor Underwriters shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;reasonably object.
(d) it shall ERP will deliver to you as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as you reasonably request.
(e) ERP will furnish to Pledgee each Underwriter, from time to time statements and schedules further identifying and describing during the Pledged Collateral period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as Pledgee amended or supplemented) as such Underwriter may reasonably requestsrequest for the purposes contemplated by the 1933 Act, all in reasonable detail;the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(ef) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for ERP, to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall give be necessary, in the opinion of either such counsel, at least 30 days’ prior written notice any such time to Pledgee amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of any the 1933 Act or the 1933 Act Regulations, then ERP will promptly prepare and file with the Commission such amendment or supplement in form and substance reasonably satisfactory to counsel for the Underwriters, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements.
(g) ERP will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as you may designate; provided, however, that ERP shall not be obligated to (i) change of the location of Pledgor’s chief executive officequalify as a foreign limited partnership in any jurisdiction where it is not so qualified, (ii) change file any general consent to service of Pledgor’s name, identity or structure process or (iii) reorganization or reincorporation of Pledgor under take any action that would subject it to income taxation in any such jurisdiction. In each jurisdiction in which the Underwritten Securities have been so qualified, ERP will file such statements and reports as may be required by the laws of another jurisdiction, such jurisdiction to continue such qualification in each case from effect for so long as may be required for the information specified in Part B distribution of Schedule 1;the Underwritten Securities.
(fh) it shall With respect to each sale of Underwritten Securities, ERP will make generally available to its security holders as soon as practicable, but not consent later than 90 days after the close of the period covered thereby, an earning statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not later than the first day of ERP's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement.
(i) ERP, during the period when the Prospectus is required to any be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(j) ERP will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateralapplicable Closing Time, the Pledgor’s rights in the Pledged Collateralwhichever is later, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of ERP with a maturity of more than one year (other than the Pledged Collateral or Underwritten Securities which are to be sold pursuant to such Terms Agreement), except as may otherwise be provided in connection with the transaction contemplated by this applicable Terms Agreement.
(k) ERP will take all reasonable action necessary to enable Standard & Poor's Corporation ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") to provide their respective credit ratings of any Underwritten Securities, if applicable.
Appears in 1 contract
Sources: Debt Securities Purchase Agreement (Erp Operating LTD Partnership)
Covenants. a. The Pledgor hereby Company covenants and agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause the Registration Statement and any amendment thereto, if not effective at the time and date that during this Agreement is executed and delivered by the continuance parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Final Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Final Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing; the Company will notify you, promptly after it shall receive notice thereof, of the time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective or any amendment or supplement to the Final Prospectus has been filed.
(ii) The Company will notify you promptly of any request by the Commission to amend or supplement the Registration Statement or Final Prospectus or for additional information; promptly upon your request, the Company will prepare and file with the Commission amendments or supplements to the Registration Statement or Final Prospectus which, in the reasonable opinion of, Schifino & ▇▇▇▇▇▇▇▇▇, P.A., counsel for the several Underwriters, may be necessary or advisable in connection with the distribution of Shares by the Underwriters; the Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon such Rule; the Company will promptly prepare and file with the Commission, and promptly notify you of the filing of, any amendment or supplement to the Registration Statement or Final Prospectus that may be necessary to correct any statements or omissions if, at any time a prospectus relating to the Shares is required to be delivered under the Act, any event shall have occurred as a result of which the Final Prospectus would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; in case any Underwriter is required to deliver a prospectus within the nine-month period referred to in Section 10(a)(3) of the Act in connection with the sale of the Shares, the Company will prepare promptly upon request of such Underwriters, at the expense of the Company, such amendment or amendments to the Registration Statement and the Final Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act, and it will file no amendment or supplement to the Registration Statement or the Final Prospectus that shall not previously have been submitted to you a reaonsable time prior to the proposed filing thereof or to which you shall reasonably object in writing, subject, however, to compliance with the Act and the Rules and Regulations thereunder and the provisions of this Agreement.
(iii) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of the Registrations Statement or of the initiation or threat of any proceeding for that purpose; and the Company shall promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such a stop order should be issued.
(iv) The Company will use its best efforts to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may designate and to continue such qualifications in effect for so long as may be required for purposes of the distribution of the Shares, except that the Company shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or to make any undertaking with respect to the conduct of its business. In each jurisdiction in which the shares have qualified as above provided, the Company will make and file such statements and reports in each year as are or may be reasonable required by the laws of such jurisdiction.
(v) The Company has furnished to you all Registration Statements filed with the Commission prior to the date hereof and will furnish to you, as soon as available, three copies of the Registration Statement (including all exhibits), each Preliminary Prospectus or the Final Prospectus and any amendments or supplements to such documents, including any prospectus prepared to permit compliance with Section 10(a)(3) of the Act, all in such quantities as you may from time to time reasonably request.
(vi) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the 45th day following the end of the fiscal quarter first occurring after the first anniversary of the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Act and covering a twelve-month period beginning after the effective date of the Registration Statement.
(vii) During a period of five years after the date hereof if required by law or the applicable rules of the Commission, any securities exchange or the National Association of Securities Dealers Inc. (the "NASD"), the Company will furnish to its stockholders, as soon as practicable after the end of each respective period, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to you and the other several Underwriters hereunder, upon request, (i) concurrently, if required (when available if not), with furnishing such reports to its stockholders, statements of operations of the Company for each of the first three quarters in the form furnished to the Company's stockholders; (ii) concurrently with furnishing to its stockholders, an annual report; (iii) as soon as they are available, copies of all other reports (financial or other) mailed to the Company's Stockholders; (iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any securities exchange or the NASD; (v) every material press release in respect of the Company or its affairs which was released or prepared by the Company; and (vi) any additional information of a public nature concerning the Company or its business that you may reasonably request. During such five-year period, if the Company shall have active Subsidiaries, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its Subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant Subsidiaries that is not so consolidated.
(viii) The Company shall not, during the 180 days following the date on which the Shares are first released by you for sale to the public, except with the prior written consent of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., offer for sale, sell, distribute or otherwise dispose of any shares of Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock (other than the grant of options pursuant to option plans existing on the date hereof or the issuance Common Stock upon exercise of outstanding options or Warrants), or any securities convertible or exchangeable into Common Stock, except for securities issued in connection with an acquisition.
(ix) The Company will apply the net proceeds from the sale of the Shares being sold by it in the manner set forth under the caption "Use of Proceeds" in the Final Prospectus.
b. The Selling Shareholder covenants and agrees with the several Underwriters that:
(ai) it shall warrant and defend its title Such Selling Shareholder will not (i) take, directly or indirectly, prior to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) termination of the Pledgee conferred underwriting syndicate contemplated by this Agreement in and Agreement, any action designed to cause or to result in, or that might reasonably be expected to constitute, the Pledged Collateral, in each case at the cost stabilization or manipulation of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect price of any other liability security of the Company to facilitate the Pledgor and the Pledgor shall not prove nor have the right sale or resale of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive officeShares, (ii) change of Pledgor’s namesell, identity bid for, purchase or structure pay anyone any compensation for soliciting purchases of, the Shares or (iii) reorganization pay to or reincorporation agree to pay any person any compensation for soliciting another to purchase any other securities of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Company.
(fii) it shall not consent In order to any termination of or amendment to document the Organizational Documents or other organizational documents Underwriters' compliance with the reporting and withholding provisions of the Company that could reasonably be expected to adversely affect the Pledged CollateralInternal Revenue Code of 1986, the Pledgor’s rights in the Pledged Collateralas amended, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any the transactions herein contemplated, the Selling Shareholder agrees to deliver to the Underwriters prior to or at the First Time of the Pledged Collateral Delivery a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in connection with the transaction contemplated by this Agreementlieu thereof).
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer covenants and agrees with the several Underwriters that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations the Prospectus in a form approved by this Agreement in and the Underwriters; (ii) not file any amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have promptly reasonably objected in each case at writing or which is not in compliance with the cost Rules and Regulations; and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Pledgor against Prospectus and prior to the claims and demands termination of all persons whomsoever;the offering of the Shares by the Underwriters.
(b) except The Issuer will not distribute any prospectus or other offering material (including, without limitation, any offer relating to the Shares that would constitute a “free writing prospectus” (as otherwise permitted defined in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part Rule 405 of the Pledged Collateral or suffer Rules and Regulations) required to exist any encumbrance on be filed by the Pledged CollateralIssuer with the Commission under Rule 433 of the Rules and Regulations) in connection with the offering and sale of the Shares, other than Permitted Liens;the materials referred to in Section 1(a) without the prior consent of the Underwriters. Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer and the Underwriters, will not make, any offer relating to the Shares that would constitute a free writing prospectus. Any Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and the Underwriters is listed on Schedule II(a) or Schedule II(b) hereto. The Issuer will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer will satisfy the conditions under Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Prospectus or the Disclosure Package or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this covenant shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Issuer by an Underwriter expressly for use therein.
(c) it shall The Issuer will not take from take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the Company any undertaking stabilization or security in respect manipulation of its liability hereunder or in respect the price of any other liability securities of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;Issuer.
(d) it shall furnish The Issuer will advise the Underwriters promptly (i) of any request of the Commission for amendment of the Registration Statement or for supplement to Pledgee from time the Prospectus or for any additional information; and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Issuer will use its best efforts to time statements prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus and schedules further identifying and describing to obtain as soon as possible the Pledged Collateral as Pledgee reasonably requestslifting thereof, all in reasonable detail;if issued.
(e) The Issuer will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Issuer shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it shall give at least 30 days’ prior written notice is not now so qualified or required to Pledgee of any (i) change file such a consent. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Shares.
(f) it shall not consent The Issuer will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any termination Preliminary Prospectus as the Underwriters may reasonably request. The Issuer will deliver to, or upon the order of, the Underwriters during the period when delivery of or amendment to a Prospectus is required under the Organizational Documents or other organizational documents Securities Act, as many copies of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights Prospectus in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the samefinal form, or cause an Event of Default to occur; andas thereafter amended or supplemented, as the Underwriters may reasonably request.
(g) it shall indemnify The Issuer will comply with the Pledgee fromSecurities Act and the Rules and Regulations, and hold it harmless againstthe Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Issuer promptly will prepare and all liabilities file with respect tothe Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or prepare and file with the Commission an appropriate filing under the Exchange Act, which shall be incorporated by reference in the Prospectus, so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or resulting from so that the Prospectus will comply with the law.
(h) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in any delay event not later than 18 months after the Effective Date, an earning statement (which need not be audited) of the Issuer and its Subsidiaries complying with the requirements of Section 11(a) of the Securities Act and, at the option of the Issuer, Rule 158 of the Rules and Regulations.
(i) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in payingthe Registration Statement and the Prospectus.
(j) The Issuer covenants and agrees that no offering, sale, short sale or other disposition of any shares of Common Stock of the Issuer or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Issuer otherwise than hereunder or with the prior written consent of the Underwriters; provided, that this provision shall not apply to the Shares to be sold hereunder, any and all stampshares of Common Stock issued by the Issuer upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof, excise, sales or other taxes which may be payable any shares of Common Stock issued or determined to be payable issued, or options to purchase Common Stock granted or to be granted in the ordinary course of business consistent with past practice, pursuant to existing employee or non-employee director benefit or incentive plans.
(k) The Issuer will use its best efforts to list, subject to notice of issuance, the Shares on The Nasdaq Global Market.
(l) At or prior to the date hereof, the Issuer shall have furnished to the Underwriters a letter substantially in the form of Exhibit A-1 or A-2 hereto from each officer, director and stockholder of the Issuer named in Schedule III hereto addressed to the Underwriters (“Lockup Agreements”).
(m) The Issuer shall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package and shall file reports with the Commission with respect to any the sale of the Pledged Collateral Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act.
(n) The Issuer shall not invest, or otherwise use the proceeds received by the Issuer from its sale of the Shares in connection with such a manner as would require the transaction contemplated by this AgreementIssuer to register as an investment company under the ▇▇▇▇ ▇▇▇.
(o) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
Appears in 1 contract
Covenants. (a) The Pledgor hereby covenants that during Issuer agrees with the continuance several Underwriters to prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement:
(a) it shall warrant and defend its title , or, if applicable, such earlier time as may be required by Rule 430B; to make no further amendment or any supplement to the Pledged CollateralRegistration Statement or the Prospectus which shall be disapproved by the Representative promptly after reasonable notice thereof; to advise the Underwriters, and all material rights and the security interest (including the priority promptly after it receives notice thereof) , of the Pledgee conferred by this Agreement in time when any post-effective amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Pledged CollateralUnderwriters with copies thereof; to advise the Underwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any preliminary prospectus, Issuer-Represented Free Writing Prospectus or Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, any preliminary prospectus, Issuer-Represented Free Writing Prospectus or the Prospectus (in each case at case, including any document incorporated or deemed to be incorporated by reference therein) or for additional information; and in the cost event of the Pledgor against issuance of any stop order or of any order preventing or suspending the claims and demands use of all persons whomsoever;any preliminary prospectus, any Issuer-Represented Free Writing Prospectus or Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order.
(b) except as otherwise permitted in this Agreement or The Issuer shall pay the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Pledged Collateral Securities Act Rules without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Rules (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) of the Securities Act Rules either in a post-effective amendment to the Registration Statement or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;cover page of a prospectus filed pursuant to Rule 424(b)).
(c) it shall The Issuer has not take received from the Company Commission any undertaking or security in respect of its liability hereunder or in respect of any other liability notice pursuant to Rule 401(g)(2) objecting to use of the Company automatic shelf registration statement form. If at any time when Shares remain unsold by the Underwriters the Issuer receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Issuer will (i) promptly notify the Representative, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Pledgor and the Pledgor shall not prove nor have the right of proofShares, in competition with the Pledgee, for any monies whatsoever owing from the Company a form satisfactory to the PledgorRepresentative, in any insolvency (iii) use its best efforts to cause such registration statement or liquidationpost-effective amendment to be declared effective as soon as practicable, and (iv) promptly notify the Representative of such effectiveness. The Issuer will take all other action necessary or analogous proceedings under any applicable law, appropriate to permit the public offering and sale of the Pledgor;Shares to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Issuer has otherwise become ineligible. References herein to the Registration Statement relating to the Shares shall include such new registration statement or post-effective amendment, as the case may be.
(d) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Prospectus or the Disclosure Package 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 Issuer agrees that it shall furnish has notified or will notify promptly the Underwriters so that any use of such Issuer-Represented Free Writing Prospectus may cease until it is amended or supplemented and the Issuer has promptly amended or supplemented or will promptly amend or supplement such Issuer-Represented Free Writing Prospectus to Pledgee from time eliminate or correct such conflict, untrue statement or omission. The Underwriters agree to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;immediately cease using such Issuer-Represented Free Writing Prospectus upon receipt of any such notice.
(e) The Issuer represents and agrees that, unless it shall give at least 30 days’ obtains the prior written notice to Pledgee of any (i) change consent of the location Representative, and the several Underwriters represent and agree that, unless they obtain the prior written consent of Pledgor’s chief executive officethe Issuer, (iieach of them has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, whether or not required to be filed with the Commission. Any such free writing prospectus consented to by the Issuer and the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus” and is listed on Schedule II(a) change hereto. The Issuer represents that it has treated and 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 Pledgor’s nameRule 433 applicable to any Permitted Free Writing Prospectus, identity including timely filing with the Commission where required, legending and record keeping. The Issuer represents that it has satisfied the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show. Notwithstanding the foregoing, for purposes of this Section 4(e), the Issuer makes no representations or structure or (iii) reorganization or reincorporation warranties with respect to the activities of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Underwriters.
(f) it shall The Issuer will not consent take, directly or indirectly, any action designed to any termination of cause or amendment to the Organizational Documents result in, or other organizational documents of the Company that could has constituted or might reasonably be expected to adversely affect the Pledged Collateralconstitute, the Pledgor’s rights in the Pledged Collateral, the validity, perfection stabilization or priority manipulation of the security interests price of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; andIssuer’s Common Stock.
(g) it The Issuer will advise the Representative promptly (i) when the Registration Statement or any post-effective amendment thereto shall indemnify have become effective; (ii) of receipt of any comments from the Pledgee fromCommission; (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Issuer will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(h) The Issuer will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and hold furnish such information as may be reasonably required for that purpose, provided the Issuer shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it harmless againstis not now so qualified or required to file such a consent. The Issuer will, any from time to time, prepare and all liabilities with respect file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Shares.
(i) The Issuer will deliver to, or resulting upon the order of, the Representative, from time to time, as many copies of any delay preliminary prospectus as the Representative may reasonably request. The Issuer will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in payingfinal form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Issuer will deliver to the Representative at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representative may reasonably request.
(j) The Issuer will comply with the Securities Act and the Securities Act Rules, and the Exchange Act and the Exchange Act Rules, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Issuer or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Issuer promptly will prepare and all stampfile with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, excisein the light of the circumstances when it is so delivered, sales be misleading, or other taxes so that the Prospectus will comply with the law.
(k) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Rules and will advise you in writing when such statement has been so made available.
(l) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(m) During a period of 90 days from the date of this Agreement (as such period may be payable extended as set forth below, the “Restricted Period”), the Issuer will not, without the prior written consent of the Representative, (i) directly or determined indirectly, offer, pledge, sell, contract to be payable sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or file any registration statement under the Securities Act with respect to any of the Pledged Collateral foregoing or (ii) enter into any swap, hedge or any other agreement or any transaction that transfers, in whole or in connection part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap, hedge or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Issuer upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the Prospectus or the Disclosure Package, (iii) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Issuer referred to in the Registration Statement, the Prospectus or the Disclosure Package, provided that such options shall not be vested and exercisable within the Restricted Period, or (iv) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan. In the event that either (i) during the last 17 days of the original 90-day restricted period, the Issuer issues an earnings release or material news or a material event relating to the Issuer and/or Subsidiaries occurs, or (ii) prior to the expiration of the 90-day restricted period, the Issuer announces that it will release earnings results during the 16-day period beginning on the last day of the original 90-day restricted period, the restrictions set forth herein will continue to apply until the expiration of the 18 day period beginning on the date on which the earnings release is issued or the material news or event related to the Issuer and/or Subsidiaries occurs. The Issuer shall promptly notify the Representative of any earnings releases, news or events that may give rise to an extension of any such restricted period.
(n) The Issuer will use its best efforts to list, subject to notice of issuance, the Shares on the NYSE.
(o) The Issuer has caused each person specified on Schedule III hereto to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Issuer, or any other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) during the Restricted Period, directly or indirectly, except with the transaction contemplated prior written consent of the Representative (“Lockup Agreements”).
(p) The Issuer shall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package.
(q) The Issuer shall not invest, or otherwise use the proceeds received by this Agreementthe Issuer from its sale of the Shares in such a manner as would require the Issuer or any of the Subsidiaries to register as an investment company under the 1940 Act.
(r) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during Company and the continuance of this AgreementOperating Partnership, as the case may be, covenant and agree with the Underwriters that:
(a) The Company will cause the Prospectus Supplement to be filed as required by Section 2(a) hereof (but only if the Underwriters or their counsel have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify the Underwriters promptly of such filing. During the period in which a prospectus relating to the Shares is required to be delivered under the Securities Act or such date which is 90 days after the Closing Time, whichever is later, the Company will notify the Underwriters promptly of the time when any subsequent amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed, or of any request by the Commission for any amendment or supplement to the Registration Statement or the Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriters' request, any amendments or supplements to the Registration Statement or the Prospectus that, in the Underwriters' opinion, may be necessary or advisable in connection with the Underwriters' distribution of the Shares; and the Company will file no amendment or supplement to the Registration Statement or the Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document required to be filed under the Exchange Act that upon filing is deemed to be incorporated by reference therein) to which the Underwriters or their counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriters, promptly after it shall warrant receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification or registration of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and defend it will promptly use its title best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c) The Company will comply with all requirements imposed upon it by the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during such period where a prospectus relating to the Pledged CollateralShares is required to be delivered under the Securities Act, any event occurs as a result of which, in the opinion of the Underwriters' counsel, the Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or the Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriters and will amend or supplement the Registration Statement or the Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will furnish to the Underwriters copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all material rights amendments and supplements to the Registration Statement and the security interest Prospectus that are filed with the Commission during the period in which a prospectus relating to the Shares is required to be delivered under the Securities Act or such date which is 90 days after the Closing Time, whichever is later (including all documents filed with the priority thereof) of the Pledgee conferred Commission during such period that are deemed to be incorporated by this Agreement in and to the Pledged Collateralreference therein), in each case at as soon as available and in such quantities as the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee Underwriters may from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;request.
(e) During the period of five years commencing on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act, the Company will furnish the Underwriters with copies of filings of the Company under the Securities Act and the Exchange Act and with all other financial statements and periodic and special reports it shall give at least 30 days’ prior written notice distributes generally to Pledgee the holders of any class of its capital stock.
(f) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act Rules and Regulations but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earning statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Rules and Regulations.
(g) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to (i) change the preparation, printing and filing of the location of Pledgor’s chief executive officeRegistration Statement and exhibits thereto, the Prospectus, each preliminary prospectus and any amendment or supplement to the Registration Statement or the Prospectus, (ii) change the preparation and delivery of Pledgor’s namecertificates representing the Shares, identity or structure or (iii) reorganization the printing and reproduction of this Agreement, (iv) the costs incurred by the Company in furnishing (including costs of shipping, mailing and courier) such copies of the Registration Statement, the Prospectus and any preliminary prospectus and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters, (v) the listing of the Shares on the NYSE, (vi) if and to the extent required, the registration or reincorporation qualification of Pledgor the Shares for offer and sale under the securities or blue sky laws of another such jurisdictions designated by the Underwriters or the notification with respect thereto required by any such jurisdiction, including the fees, disbursements and other charges of the Underwriters' counsel in each case from connection therewith, and the information specified preparation and printing of blue sky memoranda; provided, however, that no such registration or qualification would subject the Company to service of process or require it to qualify to do business in Part B any such jurisdiction, (vii) counsel to the Company, (viii) the transfer agent for the Shares, and (ix) the accountants of Schedule 1;the Company.
(fh) it If this Agreement shall not consent be terminated pursuant to Section 8 hereof or if for any termination of or amendment reason the Company shall be unable to perform its obligations hereunder, the Organizational Documents or Company will reimburse the Underwriters for all out-of-pocket expenses (including the fees, disbursements and other organizational documents charges of the Underwriters' counsel) reasonably incurred by the Underwriters in connection herewith.
(i) The Company that could will not at any time, directly or indirectly, take any action designed to, or which might reasonably be expected to, cause or result in, or which has constituted or which might reasonably be expected to adversely affect constitute, a violation of Regulation M under the Pledged Collateral1934 Act, or the Pledgor’s rights stabilization of the price of its capital stock to facilitate the sale or resale of any of the Shares.
(j) The Company will use its best efforts to continue to meet the requirement to qualify as a REIT under the Code for each of its taxable years for so long as the board of directors deems it in the Pledged Collateral, the validity, perfection or priority of the security best interests of the Pledgee Company's stockholders to remain so qualified.
(k) The Company will use its best efforts to effect the listing of the Shares on the New York Stock Exchange.
(l) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Pledged Collateral, 1940 Act.
(m) The Company and the rights and remedies Operating Partnership will apply the net proceeds from the sale of the Pledgee Shares as set forth under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event caption "Use of Default to occur; and
(g) it shall indemnify Proceeds" in the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this AgreementProspectus Supplement.
Appears in 1 contract
Sources: Underwriting Agreement (Home Properties of New York Inc)
Covenants. The Pledgor hereby Assignor covenants that during the continuance of this Agreementand agrees as follows:
(ai) it Assignor shall warrant not, either by itself or through any agent, employee, licensee or designee, file an application for the registration of any Intellectual Property Collateral with the United States Patent and defend its title to Trademark Office or any similar office or agency in the Pledged CollateralUnited States or any other country or any political subdivision thereof without giving Lender written notice thereof within 45 days after any such application is filed, (ii) upon issuance of any Trademarks, Assignor shall notify Lender promptly in writing and, in any event, within five Business Days thereafter, and all material rights (iii) upon the request of Lender, Assignor shall execute and the deliver, for filing with any such office or agency as Lender may deem appropriate, (A) an amendment to this assignment adding a description of such Intellectual Property Collateral to Schedule 1 and (B) any other agreements, instruments, documents, and papers as Lender may request to evidence Lender's lien upon and security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and to the Pledged such Intellectual Property Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;.
(b) except as otherwise permitted in this Agreement or Subject to Section 4(a) hereof, Assignor shall take all necessary actions to maintain and pursue each application, to obtain the Finance Documentsrelevant registration, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part and to maintain the registration of all of the Pledged Intellectual Property Collateral with the United States Patent and Trademark Office or suffer other appropriate filing office or agency in which registration is necessary to exist any encumbrance on protect its rights therein, including the Pledged Collateralfiling of applications for renewal, other than Permitted Liens;affidavits of use, affidavits of noncontestability and opposition and interference and cancellation proceedings.
(c) In the event that any of Assignor's rights under any Intellectual Property Collateral are infringed, misappropriated or diluted by a third party, Assignor (i) shall notify Lender promptly after it learns thereof, unless Assignor shall reasonably determine that such Intellectual Property Collateral is not take from material to the Company any undertaking or security in respect conduct of its liability hereunder or business, in respect which case Assignor shall provide Lender with quarterly reports thereof within the period required for delivery of any other liability Assignor's monthly financial statements as set forth in Section 5.1(b) of the Company Loan Agreement, (ii) shall promptly ▇▇▇ such party for infringement, misappropriation or dilution and recover any and all damages for such infringement, misappropriation or dilution, unless Assignor shall reasonably determine that such Intellectual Property Collateral is not material to the Pledgor conduct of its business, and (iii) shall take such other actions as Assignor shall reasonably deem appropriate under the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company circumstances to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;protect such Intellectual Property Collateral.
(d) it Assignor shall furnish promptly notify Lender, in writing, of any suit, action or proceeding brought against Assignor relating to, concerned with or affecting the Intellectual Property Collateral or infringement of or interference with another trademark which, if determined adversely, is likely to Pledgee from time have a Material Adverse Effect and shall, upon request by Lender, deliver to time statements Lender a copy of all pleadings, papers, orders, or decrees theretofore or thereafter filed in any such suit, action or proceeding, and schedules further identifying shall keep Lender fully advised and describing informed, in writing, of the Pledged Collateral as Pledgee reasonably requestsprogress of any such suit, all in reasonable detail;action or proceeding.
(e) Assignor shall notify Lender immediately if it shall give at least 30 days’ prior written notice knows or has reason to Pledgee of any know (i) change that any application or registration relating to any Intellectual Property Collateral that is material to the conduct of the location of Pledgor’s chief executive officeits business may become abandoned or dedicated, or (ii) change that there has been or, in Assignor's reasonable business judgment, likely may be an adverse determination or development (including the institution of, or any adverse determination or development in, any proceeding in the United States Patent and Trademark Office or any court) regarding (A) Assignor's ownership of Pledgor’s nameany Intellectual Property Collateral that is material to the conduct of its business, identity or structure (B) Assignor's right to register such Intellectual Property Collateral, or (iiiC) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Assignor's right to keep and maintain such Intellectual Property Collateral.
(f) it Upon the written request of Lender, Assignor shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights promptly and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, duly execute and hold it harmless against, deliver any and all liabilities with respect toadditional documents, or resulting from any delay in payingincluding UCC-1 financing statements, any and all stamp, excise, sales or other taxes which take such further action as Lender may be payable or determined reasonably require to be payable with respect to any obtain the full benefit of the Pledged Collateral or in connection with the transaction contemplated by this Agreement, all at the sole expense of Assignor.
Appears in 1 contract
Sources: Trademark Security Agreement (BLC Financial Services Inc)
Covenants. The Pledgor Borrower hereby covenants with the Lender that during the continuance life of this AgreementAgreement and while any amount is owing by the Borrower to the Lender hereunder the Borrower shall:
(ai) it shall warrant and defend its title forward promptly to the Pledged CollateralLender at any time such financial information regarding its affairs as the Lender may reasonably request;
ii) pay to the Lender reasonable costs, fees and expenses, including fees and expenses of counsel, which the Lender may expend or become liable for in preparation, implementation and enforcement of the Loan Agreement including demanding, suing for, recovering and receiving payment of any sum due to the Lender hereunder and under any documents executed pursuant hereto;
iii) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which material penalties may become attached thereto;
iv) as soon as possible but in any event within five (5) days after occurrence, give written notice to the Lender of any Event of Default as defined in Article 9 hereof or any event which, with the giving of notice or passage of time, or both, would become an Event of Default and of any other matter which has resulted or might result in a material adverse change in the Borrower's financial condition or operations, taken as a whole;
v) maintain its corporate existence in good standing in compliance with all applicable laws, regulations and other governmental requirements and continue to conduct its business substantially as such business is now conducted;
vi) obtain and continue in full force and effect all governmental approvals, consents, licenses, authorizations, declarations, filings and registrations as may be necessary or advisable for the performance of all the terms and conditions of this Agreement and every document, the execution and delivery of which is contemplated herein, and to take all material rights and such additional action as may be proper or advisable in connection therewith;
vii) not, without prior written notice to the security interest (including the priority thereof) Lender, permit any indebtedness, obligation or liability, actual or contingent, of the Pledgee conferred Borrower to be secured by this Agreement in and or to the Pledged Collateralbenefit from any lien, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documentspledge, it shall not sell, assign, transfermortgage, charge, pledge encumbrance, security interest or encumber segregation or other preferential arrangement (whether or not constituting a security interest) in favor of any manner any part creditor or class of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or creditors in respect of any other liability present or future properties, assets or revenues of the Company to the Pledgor and the Pledgor shall not prove nor have Borrower or of the right of proofthe Borrower to receive income except as otherwise provided herein and except for encumbrances or any segregation or other preferential arrangement (i) for taxes, assessments or other governmental charges or levies on properties or assets of the Borrower if the same shall not at the time be delinquent or thereafter can be paid without penalty or the validity of which is being contested in competition with good faith by appropriate proceedings upon stay of execution of the Pledgeeenforcement thereof, for any monies whatsoever owing from (ii) imposed by law, such as carriers', warehousemen and mechanics' liens and other similar liens arising in the Company to the Pledgorordinary course of business and not material in amount, in any insolvency (iii) arising out of pledges or liquidationdeposits under workmen's compensation laws, unemployment insurance, old age pensions, or analogous proceedings under any applicable lawsocial security or retirement benefits or similar legislation, or (iv) on properties or assets of the Pledgor;Borrower created at the time of acquisition of such properties or assets solely to secure the purchase price of such property or assets; and
(dviii) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing not, without the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any the Lender, (i) change of the location of Pledgor’s chief executive officemerge or consolidate with any other corporation, partnership or sole proprietorship, or (ii) change acquire all or a substantial part of Pledgor’s namethe assets of any other corporation, identity partnership or structure sole proprietorship.
ix) not, without the prior written consent of the Lender, (i) liquidate or dissolve, or (iiiii) reorganization sell, transfer or reincorporation otherwise dispose of Pledgor under the laws of another jurisdictionits business, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document significant portion of its property or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementassets.
Appears in 1 contract
Covenants. a. The Pledgor hereby Company covenants and agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause the Registration Statement and any amendment thereto, if not effective at the time and date that during this Agreement is executed and delivered by the continuance parties hereto, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations, or the filing of the Final Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations, the Company will file the Final Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations within the time period prescribed and will provide evidence satisfactory to you of such timely filing; the Company will notify you, promptly after it shall receive notice thereof, of the time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective or any amendment or supplement to the Final Prospectus has been filed.
(ii) The Company will notify you promptly of any request by the Commission to amend or supplement the Registration Statement or Final Prospectus or for additional information; promptly upon your request, the Company will prepare and file with the Commission amendments or supplements to the Registration Statement or Final Prospectus which, in the reasonable opinion of, Schifino & ▇▇▇▇▇▇▇▇▇, P.A., counsel for the several Underwriters, may be necessary or advisable in connection with the distribution of Shares by the Underwriters; the Company will fully and completely comply with the provisions of Rule 430A of the Rules and Regulations with respect to information omitted from the Registration Statement in reliance upon such Rule; the Company will promptly prepare and file with the Commission, and promptly notify you of the filing of, any amendment or supplement to the Registration Statement or Final Prospectus that may be necessary to correct any statements or omissions if, at any time a prospectus relating to the Shares is required to be delivered under the Act, any event shall have occurred as a result of which the Final Prospectus would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; in case any Underwriter is required to deliver a prospectus within the nine-month period referred to in Section 10(a)(3) of the Act in connection with the sale of the Shares, the Company will prepare promptly upon request of such Underwriters, at the expense of the Company, such amendment or amendments to the Registration Statement and the Final Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act, and it will file no amendment or supplement to the Registration Statement or the Final Prospectus that shall not previously have been submitted to you a reasonable time prior to the proposed filing thereof or to which you shall reasonably object in writing, subject, however, to compliance with the Act and the Rules and Regulations thereunder and the provisions of this Agreement.
(iii) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of the Registrations Statement or of the initiation or threat of any proceeding for that purpose; and the Company shall promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such a stop order should be issued.
(iv) The Company will use its best efforts to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may designate and to continue such qualifications in effect for so long as may be required for purposes of the distribution of the Shares, except that the Company shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or to make any undertaking with respect to the conduct of its business. In each jurisdiction in which the shares have qualified as above provided, the Company will make and file such statements and reports in each year as are or may be reasonable required by the laws of such jurisdiction.
(v) The Company has furnished to you all Registration Statements filed with the Commission prior to the date hereof and will furnish to you, as soon as available, three copies of the Registration Statement (including all exhibits), each Preliminary Prospectus or the Final Prospectus and any amendments or supplements to such documents, including any prospectus prepared to permit compliance with Section 10(a)(3) of the Act, all in such quantities as you may from time to time reasonably request.
(vi) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the 45th day following the end of the fiscal quarter first occurring after the first anniversary of the "effective date of the Registration Statement" (as defined in Rule 158(c) of the Rules and Regulations), an earnings statement (which will be in reasonable detail but need not be audited) complying with the provisions of Section 11(a) of the Act and covering a twelve-month period beginning after the effective date of the Registration Statement.
(vii) During a period of five years after the date hereof if required by law or the applicable rules of the Commission, any securities exchange or the National Association of Securities Dealers Inc. (the "NASD"), the Company will furnish to its stockholders, as soon as practicable after the end of each respective period, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to you and the other several Underwriters hereunder, upon request, (i) concurrently, if required (when available if not), with furnishing such reports to its stockholders, statements of operations of the Company for each of the first three quarters in the form furnished to the Company's stockholders; (ii) concurrently with furnishing to its stockholders, an annual report; (iii) as soon as they are available, copies of all other reports (financial or other) mailed to the Company's Stockholders; (iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any securities exchange or the NASD; (v) every material press release in respect of the Company or its affairs which was released or prepared by the Company; and (vi) any additional information of a public nature concerning the Company or its business that you may reasonably request. During such five-year period, if the Company shall have active Subsidiaries, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its Subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant Subsidiaries that is not so consolidated.
(viii) The Company shall not, during the 180 days following the date on which the Shares are first released by you for sale to the public, except with the prior written consent of First American, offer for sale, sell, distribute or otherwise dispose of any shares of Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock (other than the grant of options pursuant to option plans existing on the date hereof or the issuance Common Stock upon exercise of outstanding options or Warrants), or any securities convertible or exchangeable into Common Stock, except for securities issued in connection with an acquisition.
(ix) The Company will apply the net proceeds from the sale of the Shares being sold by it in the manner set forth under the caption "Use of Proceeds" in the Final Prospectus.
(x) Until expiration of the First American Warrants, the Company will keep reserved sufficient shares of Common Stock for issuance upon exercise of the First American Warrants.
b. The Selling Shareholder covenants and agrees with the several Underwriters that:
(ai) it shall warrant and defend its title Such Selling Shareholder will not (i) take, directly or indirectly, prior to the Pledged Collateral, and all material rights and the security interest (including the priority thereof) termination of the Pledgee conferred underwriting syndicate contemplated by this Agreement in and Agreement, any action designed to cause or to result in, or that might reasonably be expected to constitute, the Pledged Collateral, in each case at the cost stabilization or manipulation of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect price of any other liability security of the Company to facilitate the Pledgor and the Pledgor shall not prove nor have the right sale or resale of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive officeShares, (ii) change of Pledgor’s namesell, identity bid for, purchase or structure pay anyone any compensation for soliciting purchases of, the Shares or (iii) reorganization pay to or reincorporation agree to pay any person any compensation for soliciting another to purchase any other securities of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;Company.
(fii) it shall not consent In order to any termination of or amendment to document the Organizational Documents or other organizational documents Underwriters' compliance with the reporting and withholding provisions of the Company that could reasonably be expected to adversely affect the Pledged CollateralInternal Revenue Code of 1986, the Pledgor’s rights in the Pledged Collateralas amended, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any the transactions herein contemplated, the Selling Shareholder agrees to deliver to the Underwriters prior to or at the First Time of the Pledged Collateral Delivery a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in connection with the transaction contemplated by this Agreementlieu thereof).
Appears in 1 contract
Covenants. The Pledgor hereby Company covenants that and agrees with the Underwriter as follows:
(i) If the Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Registration Statement or any post-effective amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will file a Prospectus containing the information omitted therefrom pursuant to such Rule 430A with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Rules and Regulations; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, in your opinion, may be necessary or advisable in connection with the distribution of the Securities by you; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which you shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(iii) Within the time during which a prospectus relating to the Securities is required to be delivered under the Act, the Company will comply as far as it is able with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of this Agreement:sales of or dealings in the Securities as contemplated by the provisions hereof and the Prospectus. If during such period any event occurs as a result of which the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act, the Company will promptly notify you and will amend the Registration Statement or supplement the Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(aiv) it The Company will cooperate with you and your counsel in qualifying the Securities for sale under the securities laws of such jurisdictions as you reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Securities, except that the Company shall warrant not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.
(v) The Company will furnish to you copies of the Registration Statement (two of which will be signed and defend its title to will include all exhibits), each Preliminary Prospectus, the Pledged CollateralProspectus, and all material rights amendments and the security interest (including the priority thereof) of the Pledgee conferred by this Agreement in and supplements to the Pledged Collateralsuch documents, in each case at as soon as available and in such quantities as you may from time to time reasonably request.
(vi) During a period of five years commencing with the cost date hereof, the Company will furnish to you copies of all periodic and special reports furnished to the stockholders of the Pledgor against Company and all information, documents and reports filed with the claims and demands of all persons whomsoever;Commission, the NASD, the Nasdaq National Market or any securities exchange.
(bvii) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the effective date of the Registration Statement that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(viii) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is prevented from becoming effective under the provisions of Section 8(a) hereof or is terminated, will pay or cause to be paid (A) all expenses incurred in connection with the delivery to the Underwriter of the Securities, (B) all expenses and fees (including, without limitation, fees and expenses of the Company's accountants and counsel but, except as otherwise permitted provided below, not including fees of the Underwriter's counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, each Preliminary Prospectus, the Prospectus, and any amendment thereof or supplement thereto, and the printing, delivery, and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda, (C) all filing fees and fees and disbursements of the Underwriter's counsel incurred in connection with the qualification of the Securities for offering and sale by the Underwriter or by dealers under the securities or blue sky laws of the states and other jurisdictions which the Underwriter shall designate in accordance with Section 4(a)(iv) hereof, (D) the fees and expenses of any transfer agent or registrar, (E) the filing fees incident to any required review by the NASD of the terms of the sale of the Securities, (F) listing fees, if any, and (G) all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein. If the sale of the Securities provided for herein is not consummated by reason of action by the Company pursuant to Section 8(a) hereof which prevents this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Underwriter's obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the Underwriter for all out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriter in connection with its investigation, preparing to market and marketing the Securities or in contemplation of performing their obligations hereunder. The Company shall not in any event be liable to the Underwriter for loss of anticipated profits from the transactions covered by this Agreement.
(ix) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder substantially in accordance with the purposes set forth in the Prospectus under the caption "Use of Proceeds".
(x) The Company will not, without the prior written consent of the Underwriter, offer for sale, sell, contract to sell, grant any option for the sale of or otherwise issue or dispose of any Common Stock or any securities convertible into or exchangeable for, or any options or rights to purchase or acquire, Common Stock, except to the Underwriter pursuant to this Agreement and pursuant to the Company's 1988 Employee Incentive Stock Option Plan and the Directors Stock Option Plan, for a period of 90 days after the commencement of the public offering of the Securities by the Underwriter.
(xi) The Company either has caused to be delivered to you or will cause to be delivered to you prior to the effective date of the Registration Statement a letter from each of the Company's directors and officers stating that such person agrees that he or she will not, without the prior written consent of the Underwriter, offer for sale, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to purchase Common Stock for a period of 90 days after commencement of the public offering of the Securities by the Underwriter.
(xii) The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(xiii) Other than as contemplated by this Agreement, the Company will not incur any liability for any finder's or broker's fee or agent's commission in connection with the execution and delivery of this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part consummation of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;transactions contemplated hereby.
(cxiv) it shall not take from The Company will inform the Company Florida Department of Banking and Finance at any undertaking or security in respect of its liability hereunder or in respect of any other liability time prior to the consummation of the Company to distribution of the Pledgor and Securities by the Pledgor shall not prove nor have the right of proof, Underwriter if it commences engaging in competition business with the Pledgee, for government of Cuba or with any monies whatsoever owing from person or affiliate located in Cuba. Such information will be provided within 90 days after the Company to the Pledgor, in any insolvency commencement thereof or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) after a change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable occurs with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementpreviously reported information.
Appears in 1 contract
Covenants. The Pledgor hereby covenants that during the continuance of this Agreement:
(a) The Issuer covenants and agrees with each Underwriter that it shall warrant will (i) prepare and defend its title to timely file with the Pledged Collateral, and all material rights and the security interest (including the priority thereofCommission under Rule 424(b) of the Pledgee conferred Rules and Regulations a Prospectus in a form approved by this Agreement the Underwriters containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430B of the Rules and Regulations, (ii) not file any amendment to the Pledged CollateralRegistration Statement or supplement to the Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in each case at writing or which is not in compliance with the cost Rules and Regulations and (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the date of the Pledgor against Prospectus and prior to the claims and demands termination of all persons whomsoever;the offering of the Shares by the Underwriters.
(b) except as otherwise permitted in this Agreement or The Issuer, without the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part prior consent of the Pledged Collateral Underwriters, will not distribute any prospectus or suffer other offering material (including, without limitation, any offer relating to exist any encumbrance the Shares that would constitute an Issuer Free Writing Prospectus and content on the Pledged CollateralIssuer’s website that may be deemed to be a prospectus or other offering material) in connection with the offering and sale of the Shares, other than Permitted Liens;the materials referred to in Section 1(a). The Underwriters represent and agree, jointly and severally, that they have not made and, without the prior consent of the Issuer, they will not make, any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and the Underwriters is listed on Schedule III hereto. The Issuer has complied and will comply with the requirements of Rule 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, any Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuer will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to the Underwriters an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
(c) The Issuer will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Issuer.
(d) After the date of this Agreement, the Issuer shall promptly advise the Underwriters in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iii) of the time and date that any post-effective amendment to the Registration Statement becomes effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. The Issuer shall use its commercially reasonable efforts to prevent the issuance of any such stop order or notice of prevention or suspension of such use. If the Commission shall enter any such stop order or issue any such notice at any time, the Issuer will use its commercially reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest possible moment. Additionally, the Issuer agrees that it shall not take comply with the provisions of Rules 424(b) and 430B, as applicable, of the Rules and Regulations, including with respect to the timely filing of documents thereunder, and will use its reasonable efforts to confirm that any filings made by the Issuer under such Rule 424(b) of the Rules and Regulations were received in a timely manner by the Commission.
(e) The Issuer will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under or obtain exemptions from the Company application of the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided, that the Issuer shall not be required to (i) qualify as a foreign corporation in any undertaking jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject. The Issuer will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Shares. The Issuer will advise the Underwriters promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Issuer shall use its commercially reasonable efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) The Issuer will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Prospectus as the Underwriters may reasonably request. The Issuer will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Issuer will deliver to the Underwriters at or before the Closing Date, upon request, conformed copies of the Registration Statement and all amendments thereto (including all exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof).
(g) The Issuer will comply with the Securities Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder and the rules and regulations of the New York Stock Exchange, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If, during the period in which a prospectus is required by law to be delivered by the Underwriters or a dealer, any event or development shall occur or condition exist as a result of which the Prospectus or the Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Prospectus or the Disclosure Package, in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Underwriters it is otherwise necessary to amend or supplement the Registration Statement, the Prospectus or the Disclosure Package, or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or Exchange Act or with a request from the Commission, in order to comply with law, including in connection with the delivery of the Prospectus, the Issuer agrees to (i) notify the Underwriters of any such event, development or condition and (ii) promptly prepare (subject to Section 4(a) hereof), file with the Commission (and use its commercially reasonable efforts to have any amendment to the Registration Statement to be declared effective) and furnish at its own expense to the Underwriters and to any dealers identified by the Underwriters, amendments or supplements to the Registration Statement, the Prospectus or the Disclosure Package necessary in order to make the statements in the Prospectus or the Disclosure Package as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Prospectus or the Disclosure Package, as amended or supplemented, will comply with law.
(h) The Issuer will make generally available to its security holders, as soon as it is practicable to do so, an earning statement (which need not be audited) in respect reasonable detail, covering a period of at least 12 consecutive months beginning after the Effective Date, which earning statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(i) The Issuer covenants and agrees that it will not, without the prior written consent of the Underwriters (which consent may be withheld in its liability hereunder sole discretion), directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), grant any option, right or warrant to purchase, pledge, transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, lend or otherwise dispose of any shares of Common Stock, options, rights or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock, including, without limitation, entering into any swap or other arrangement that transfers, in whole or in part, the economic consequences of the ownership of Common Stock, or announce the offering of, or file any registration statement under the Securities Act in respect of any other liability shares of Common Stock, options or warrants to acquire Common Stock or securities exchangeable or exercisable for or convertible into Common Stock, or publicly announce an intention to do any of the Company foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date 45 days after the date of the final prospectus relating to the Pledgor and offering (the Pledgor shall not prove nor have “Restricted Period”), other than: (i) the right Shares to be sold hereunder; (ii) grants of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company options or other purchase rights or shares of Common Stock pursuant to the PledgorIssuer Stock Plans; provided, in any insolvency that such securities will not vest or liquidationbecome exercisable, or analogous proceedings under any as applicable law(other than grants of shares of Common Stock to special board advisors pursuant to Issuer Stock Plans), of during the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing Restricted Period without the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 daysUnderwriters’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or consent; (iii) reorganization issuances of shares of Common Stock or reincorporation securities convertible into or exercisable or exchangeable for shares of Pledgor under Common Stock pursuant to the laws exercise of another jurisdictionwarrants, options or other convertible or exchangeable securities, including shares of convertible preferred stock, in each case from case, which are outstanding on the information specified in Part B date hereof; or (iv) any registration statement on Form S-8 or any similar or successor form relating to an offering of Schedule 1;securities solely to the Issuer’s or its Subsidiaries’ employees.
(fj) it shall not consent The Issuer will use its commercially reasonable efforts to any termination list, subject to notice of or amendment issuance, the Shares, and cause the shares to be admitted and authorized for trading, on the New York Stock Exchange.
(k) The Issuer has caused each of the persons listed on Schedule II hereto, to furnish to the Organizational Documents Underwriters, on or prior to the date of this Agreement, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Issuer or other organizational documents capital stock of the Company that could reasonably be expected to adversely affect the Pledged CollateralIssuer, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document securities convertible, exchangeable or their ability to exercise exercisable for Common Stock or derivative of Common Stock owned by such person or request the same, registration for the offer or cause an Event sale of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral foregoing (or in connection as to which such person has the right to direct the disposition of) for a period of 45 days after the date of this Agreement, directly or indirectly, except with the transaction contemplated prior written consent of the Underwriters (“Lock-up Agreements”).
(l) The Issuer shall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package.
(m) The Issuer shall not invest, or otherwise use the proceeds received by it from the sale of the Shares in such a manner as would require the Issuer or any of its Subsidiaries to, and will take such steps as necessary to ensure that neither the Issuer nor any of its Subsidiaries is required to, register as an investment company under the 1940 Act.
(n) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
(o) The Issuer will use its commercially reasonable efforts to do or perform all things required to be done or performed by it prior to the Closing Date to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement.
Appears in 1 contract
Covenants. The Pledgor hereby Company covenants that during the continuance of this Agreementwith you as follows:
(ai) it shall warrant and defend its title Prior to the Pledged Collateraltermination of the offering of the Notes, and all material rights and the security interest Company will not file any amendment of the Registration Statement or supplement (including the priority thereofFinal Prospectus) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from Basic Prospectus unless the Company has furnished the Underwriter a copy for its review prior to filing and will not file any undertaking such proposed amendment or security in respect of its liability hereunder or in respect of any other liability of supplement to which the Underwriter reasonably objects. Subject to the foregoing sentence, the Company will cause the Final Prospectus to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition be filed with the Pledgee, for any monies whatsoever owing from Commission pursuant to Rule 424. The Company will advise the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any Underwriter promptly (i) change of when the location of Pledgor’s chief executive officeFinal Prospectus shall have been filed with the Commission pursuant to Rule 424, (ii) change of Pledgor’s namewhen any amendment to the Registration Statement relating to the Notes shall have become effective, identity or structure or (iii) reorganization of any request by the Commission for any amendment of the Registration Statement or reincorporation amendment of Pledgor or 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 institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(ii) The Company will use its best efforts to cause any Computational Materials, Collateral Term Sheets and ABS Term Sheets (each as defined in Section 10 below) with respect to the Notes which are delivered by the Underwriter to the Company pursuant to Section 10 to be filed with the Commission on a Current Report on Form 8-K (the "Current Report") pursuant to Rule 13a-11 under the laws of another jurisdictionExchange Act not later than the business day immediately following the day on which such Computational Materials, Collateral Term Sheets or ABS Term Sheets are delivered to counsel for the Company by the Underwriter as provided in Section 10, and will promptly advise the Underwriter when such Current Report has been so filed. Such Current Report shall be incorporated by reference in the Final Prospectus and the Registration Statement. Notwithstanding the two preceding sentences, the Company shall have no obligation to file materials provided by the Underwriter pursuant to Section 10 which, in each case from the reasonable determination of the Company after making reasonable efforts to consult with the Underwriter, are not required to be filed pursuant to the No-Action Letters (as defined in Section 10 below), or which contain erroneous information specified or contain any untrue statement of a material fact or, which, when read in Part B of Schedule 1;conjunction with the Final Prospectus, omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; it being understood, however, that the Company shall have no obligation to review or pass upon the accuracy or adequacy of, or to correct, any Computational Materials, Collateral Term Sheets or ABS Term Sheets provided by the Underwriter to the Company pursuant to Section 10 hereof.
(fiii) If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it shall not consent be necessary to amend or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (i) of this Section 3, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance and will use its best efforts to cause any termination of or required post-effective amendment to the Organizational Documents or other organizational documents of Registration Statement containing such amendment to be made effective as soon as possible; provided, however, that the Company that could reasonably will not be expected required to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection file any such amendment or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable supplement with respect to any Computational Materials incorporated by reference in the Final Prospectus other than any amendments or supplements of such Computational Materials that are furnished to the Company pursuant to Section 10(d) hereof which the Company determine to file in accordance therewith.
(iv) The Company will furnish to the Underwriter and counsel for the Underwriter, without charge, executed copies of the Pledged Collateral Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by the Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any amendments thereof and supplements thereto (other than exhibits to the related Current Report) as the Underwriter may reasonably request. The Company will pay the expenses of printing all documents relating to the initial offering, provided that any additional expenses incurred in connection with the transaction contemplated requirement of delivery of a market-making prospectus will be borne by this Agreementthe Underwriter.
(v) To use its best efforts, in cooperation with the Underwriter, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate, and maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Notes. The Company will file or cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been so qualified.
(vi) The Issuer will use the net proceeds received by it from the sale of the Notes in the manner specified in the related Prospectus under "Use of Proceeds."
(vii) So long as any of the Notes shall be outstanding, the Company will deliver to you each annual statement as to compliance delivered to the Trustee pursuant to Section 3.09 of the Indenture, and each statement of a firm of independent public accountants furnished to the Trustee pursuant to Section 8.08 of the Indenture, as soon as such statements are furnished to the Trustee, and will furnish to you monthly a copy of the magnetic tape containing the Schedule of Accounts information.
Appears in 1 contract
Covenants. The Pledgor hereby Company covenants that during and agrees with the continuance Underwriter as follows:
(i) During the period beginning on the date hereof and ending on such date, as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered (assuming the absence of Rule 172 under the Securities Act), in connection with sales by an Underwriter or dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462(b) Registration Statement), the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter or counsel to the Underwriter reasonably objects. Subject to this Section 4(i), immediately following execution of this Agreement:, the Company will prepare the Prospectus containing the Rule 430B Information and other selling terms of the Shares, the plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the Underwriter and the Company may deem appropriate, and if requested by the Underwriter, an Issuer Free Writing Prospectus containing the selling terms of the Shares and such other information as the Company and the Underwriter may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each Issuer Free Writing Prospectus.
(aii) The Company will advise you, promptly after it shall warrant and defend its title to the Pledged Collateral, and all material rights and the security interest (including the priority receive notice or obtain knowledge thereof) of the Pledgee conferred by this Agreement in and to the Pledged Collateral, in each case at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) except as otherwise permitted in this Agreement or the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto, or preventing or suspending the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. Additionally, the Company agrees that it shall furnish comply with the provisions of Rules 424(b), 430A or 430B, as applicable, under the Act and will use its reasonable efforts to Pledgee confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission. (iii) (A) During the Prospectus Delivery Period, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any shall occur or condition shall exist as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements and schedules further identifying and describing therein, in the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change light of the location circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Pledgor’s chief executive office, (iiSale Disclosure Package) change of Pledgor’s name, identity to comply with the Securities Act or structure or (iii) reorganization or reincorporation of Pledgor to file under the laws Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify you and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of another jurisdiction, in each case from Sale Disclosure Package) or file such document (at the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents expense of the Company that could reasonably be expected Company) so as to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection correct such statement or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement omission or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Collateral or in connection with the transaction contemplated by this Agreementeffect such compliance.
Appears in 1 contract
Sources: Purchase Agreement (Dexcom Inc)
Covenants. (a) The Pledgor hereby Company covenants that during and agrees with the continuance of this AgreementPlacement Agent as follows:
(ai) it In the event the shares are not covered by a shelf registration statement, the Company shall warrant and defend its title grant to the Pledged CollateralInvestors in the Share Offering registration rights as described in the Memorandum (“Memorandum Registration Rights”). Notwithstanding the foregoing and in addition thereto, in the event that the Company engages in any liquidity event, including but not limited to a merger, reverse merger or similar takeover transaction, in which the Company’s Common Stock is converted into and represents the right to receive shares of capital stock (“Liquidity Consideration”) in another unaffiliated entity (“Entity”) and the Entity agrees to register the shares of capital stock representing the Liquidity Consideration on a registration statement on Form S-4 (“S-4 Registration Statement”) or such other similar form as may be available to the Entity at the time of such registration, then any and all Shares or the Common Stock underlying the Shares if the Shares were converted prior to such event, and the Warrant Shares as if the Warrants were exercised prior to such event, shall be converted into and become part of the Liquidation Consideration for all material rights and the security interest (purposes including the priority S-4 Registration Statement.
(ii) As soon as the Company is either informed or becomes aware thereof) , to advise Commonwealth of any adverse change in the Pledgee conferred by this Agreement in and Company’s financial condition or business or of any development materially affecting the Company occurring at any time prior to the Pledged Collateral, Closing.
(iii) The Company will apply the net proceeds from the Offering in each case at the cost of manner set forth under the Pledgor against heading “USE OF PROCEEDS” in the claims and demands of all persons whomsoever;Memorandum.
(b) except The Placement Agent covenants and agrees with the Company as otherwise permitted follows:
(i) Pursuant to its appointment hereunder, insofar as is under its control, if required the Placement Agent will conduct the Offering in the manner prescribed by Rule 506 of Regulation D and Section 4(2) of the Securities Act and in this Agreement regard will:
(A) Refrain from making any oral or written representations beyond those contained in the Finance Documents, it shall not sell, assign, transfer, charge, pledge or encumber in any manner any part of the Pledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted LiensMemorandum;
(cB) it shall not take Refrain from the Company any undertaking offering, offering for sale or security in respect of its liability hereunder or in respect of any other liability of the Company to the Pledgor and the Pledgor shall not prove nor have the right of proof, in competition with the Pledgee, for any monies whatsoever owing from the Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(d) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, all in reasonable detail;
(e) it shall give at least 30 days’ prior written notice to Pledgee of any (i) change of the location of Pledgor’s chief executive office, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the laws of another jurisdiction, in each case from the information specified in Part B of Schedule 1;
(f) it shall not consent to any termination of or amendment to the Organizational Documents or other organizational documents of the Company that could reasonably be expected to adversely affect the Pledged Collateral, the Pledgor’s rights in the Pledged Collateral, the validity, perfection or priority of the security interests of the Pledgee in the Pledged Collateral, the rights and remedies of the Pledgee under this Agreement or any other Finance Document or their ability to exercise the same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to selling any of the Pledged Collateral Shares or Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D, including:
(x) Any advertisement, article, notice or other communication mentioning the Shares or the Notes published in connection with the transaction contemplated any newspaper, magazine or similar medium or broadcast over television or radio; or
(y) Any seminar or meeting whose attendees have been invited by this Agreement.any general solicitation or general advertising;
Appears in 1 contract