Covenants. The Company covenants and agrees with the several Underwriters as follows: (a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 any Preliminary Prospectus, the General 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) 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. (c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 3 contracts
Sources: Underwriting Agreement (Inovio Pharmaceuticals, Inc.), Purchase Agreement (Inovio Pharmaceuticals, Inc.), Purchase Agreement (Inovio Pharmaceuticals, Inc.)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(ai) If During the Initial 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 has not already been declared effective by Statement, including any Rule 462(b) Registration Statement), the CommissionTime of Sale Disclosure Package or the Prospectus, the Company will use its best efforts shall furnish to cause the Initial Registration Statement Underwriters for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Representative or Prospectus or additional information; if counsel to the Company has elected Underwriters reasonably objects. Subject to rely on Rule 430A this Section 4(i), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Representative and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofRepresentative, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byRepresentative may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(bii) The Company will advise youthe Representative, 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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) and 430A), 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.
(ciii) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 3 contracts
Sources: Purchase Agreement (Clinical Data Inc), Purchase Agreement (G Iii Apparel Group LTD /De/), Purchase Agreement (Micromet, Inc.)
Covenants. The Company covenants and agrees with each of the several Underwriters as followsof any Designated Securities that:
(a) If It will prepare the Initial Registration Statement has not already been declared effective Statutory Prospectus and the Prospectus, as amended or supplemented in relation to the applicable Designated Securities in a form approved by the Commission, Representatives and will file the Company will use its best efforts to cause the Initial Registration Statement Statutory Prospectus and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed pursuant to, and of any request by the Commission for any amendment or supplement to the Initial 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 containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required frame specified by, Rule 424(b) of the Securities Act Regulations.
(b) The Company represents and agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to the 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 and, to the extent that such Issuer Free Writing Prospectus constitutes such an offer, Schedule IV, if any, to the applicable Pricing Agreement shall be deemed consented to by the Representatives. Any such free writing prospectus consented to in writing, or deemed consented to, in accordance with the provisions of, Rules 424(b) preceding sentence is referred to herein as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and 430A 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 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 433 under the Securities Act applicable to each and every Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(c) The Company will prepare a final term sheet that will include the final terms of the Designated Securities and their offering in the form specified in Schedule V 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 462(b) Registration Statement has not yet been filed 433(d)(5)(ii). Any such Final Term Sheet is an Issuer Free Writing Prospectus and become effectivea Permitted Free Writing Prospectus for purposes of this Agreement. Notwithstanding anything to the contrary contained herein, the Company will prepare consents to the use by any Underwriter of a free writing prospectus that contains only (a)(i) information describing the preliminary terms of the Designated Securities or their offering or (ii) information that describes the final terms of the Designated Securities or their offering and file that is or is to be included in the Final Term Sheet of the Company contemplated above or (b) other customary information that is neither “issuer information,” as defined in Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and 433 under the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement or Prospectus and nor otherwise an Issuer Free Writing Prospectus.
(d) It will not file make any amendment or supplement to the Registration Statement Statement, the Prospectus or Prospectus the General Disclosure Package after the Applicable Time relating to which you shall reasonably object by notice to the Company after having been furnished a copy a reasonable time such Designated Securities and prior to the filingTime of Delivery for such Designated Securities that shall be disapproved by the Representatives for such Designated Securities promptly after reasonable notice thereof.
(be) The Company It will advise youthe 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 shall receive receives notice or obtain knowledge thereof, of 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, any Rule 401(g)(2) notice or any order preventing or suspending the effectiveness of the Registration Statement, Statement or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, prospectus relating to the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of Designated Securities;
(iii) the suspension of the qualification of the such Designated Securities for offering or sale in any jurisdiction, or of ; and
(iv) the initiation or threatening of any proceeding for any such purpose; and purpose or of any request by the Company will 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 prevent obtain the issuance withdrawal 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 Commissionorder.
(cg) (A) Within It promptly will take such action as the time during which a prospectus (assuming the absence of Rule 172) relating Representatives reasonably may request to the qualify such Designated Securities is required to be delivered for offering and sale under the Securities Act by any Underwriter or dealer (securities laws of such jurisdictions as the “Prospectus Delivery Period”), the Company will use its best efforts Representatives reasonably may request and to comply with all requirements imposed upon it by the Securities Act, such laws so 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 and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of or dealings in the Securities as contemplated by the provisions hereofsuch Designated Securities. In connection therewith, the General Disclosure Package 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 ProspectusProspectus as amended or supplemented to the Underwriters in New York City, in such quantities as the Representatives reasonably may request. If during 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 period time any event occurs shall have occurred as a result of which the Prospectus (General Disclosure Package or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) 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 then existingunder 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 it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investorsRegistration Statement, the General Disclosure Package) Package or the Prospectus, 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 or to file a new registration statement pursuant to Section 4(k), the Company will promptly notify you the Representatives and upon their request will amend file such document and prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives from time to time reasonably may request of an amended Registration Statement, General Disclosure Package or Prospectus or a supplement to the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasersStatement, the General Disclosure Package) (at Package or the expense of the Company) so as to Prospectus that will correct such statement or omission or effect such compliancecompliance or filing, as applicable.
(i) 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 Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Securities Act Regulations.
(j) During the period from the date of the Pricing Agreement for such Designated Securities to the last Time of Delivery for such Designated Securities, the Company will not, directly or indirectly, issue, sell, offer to contract or grant any option to sell, pledge, transfer or otherwise dispose of any debt securities that mature more than one year after the last Time of Delivery for such Designated Securities and that are substantially similar to such Designated Securities, or securities exchangeable for or convertible into such debt securities, without the prior written consent of the Representatives; provided, that the Company may issue and sell the Designated Securities to be sold pursuant to such Pricing Agreement.
(k) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Designated Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Designated Securities, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Designated Securities, 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 other action necessary or appropriate to permit the public offering and sale of the Designated Securities to continue as contemplated in the expired registration statement relating to the Designated Securities. 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) If at any time when Designated Securities remain unsold by the Underwriters the Company 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 Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Designated Securities, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Designated Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the “Registration Statement” shall include such new registration statement or post-effective amendment, as the case maybe.
(m) The Company agrees to pay the required Commission filing fees relating to the Designated Securities within the time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act.
Appears in 3 contracts
Sources: Underwriting Agreement (Pitney Bowes Inc /De/), Underwriting Agreement (Pitney Bowes Inc /De/), Underwriting Agreement (Pitney Bowes Inc /De/)
Covenants. The Company covenants and agrees with the several Underwriters as followsEach Shareholder hereby:
(a) If the Initial Registration Statement has not already been declared effective by the Commissionagrees, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.Expiration Time, not to take any action that would make any representation or warranty of such Shareholder contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the performance by such Shareholder of its obligations under this Agreement;
(b) The Company will advise youirrevocably waives, promptly after it shall receive notice and agrees not to exercise, any rights of appraisal or obtain knowledge thereof, rights of dissent from the Merger that such Shareholder may have with respect to such Shareholder’s Securities (including without limitation any appraisal rights pursuant to Section 238 of the issuance by Cayman Companies Law) prior to 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 General 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) 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.Expiration Time;
(c) (A) Within agrees to promptly notify Parent and Merger Sub of the time during which a prospectus (assuming number of any new Securities acquired by such Shareholder after the absence of Rule 172) relating date hereof and prior to the Expiration Time. Any such Securities is required shall be subject to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it terms of this Agreement as though owned by the Securities Act, as now and hereafter amended, and by Shareholder on the Rules and Regulations, as from time to time in force, so far as necessary date hereof;
(d) agrees to permit the continuance of sales of or dealings Company to publish and disclose in the Proxy Statement, such Shareholder’s identity and ownership of Company Shares, ADSs and Company Options or other equity securities of the Company and the nature of such Shareholder’s commitments, arrangements and understandings under this Agreement;
(e) authorizes the Company, Parent, Merger Sub and their respective counsel and representatives to notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Securities as (and that this Agreement places limits on the voting and transfer of such Securities);
(f) agrees that, prior to the Expiration Time, it shall support, and grant all approvals, and take all actions reasonably requested by Parent, Merger Sub or the Company to ensure that any and all anti-takeover laws shall be inapplicable to this Agreement, the Merger Agreement, the Merger or the other transactions contemplated by the provisions hereofMerger Agreement; and
(g) agrees that, the General Disclosure Package and the Prospectus. If during such period any event occurs as a result upon request of which the Prospectus (Parent, Merger Sub or if the Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so , such Shareholder shall execute and deliver any additional documents, consents or instruments and take such further actions as may reasonably be deemed by Parent or Merger Sub to correct such statement be necessary or omission or effect such compliancedesirable to carry out the provisions of this Agreement.
Appears in 3 contracts
Sources: Voting Agreement (Deng Zhonghan), Voting Agreement (Deng Zhonghan), Voting Agreement (Deng Zhonghan)
Covenants. The Company Pledgor hereby covenants and agrees with that during the several Underwriters as followscontinuance of this Agreement:
(a) If it shall warrant and defend its title to the Initial Registration Statement has 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 already been declared effective by sell, assign, transfer, charge, pledge or encumber in any manner any part of the CommissionPledged Collateral or suffer to exist any encumbrance on the Pledged Collateral, other than Permitted Liens;
(c) it shall not take from the Company will use any undertaking or security in respect of its best efforts to cause the Initial Registration Statement and liability hereunder or in respect of any post-effective amendments thereto to become effective as promptly as possible; other liability of the Company will notify you promptly 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 when to time statements and schedules further identifying and describing the Initial Registration Statement 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 post-effective termination of or amendment to the Initial Registration Statement has become effective 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 supplement other Finance Document or their ability to exercise the Prospectus has been filed same, or cause an Event of Default to occur; and
(g) it shall indemnify the Pledgee from, and of hold it harmless against, any request by the Commission for and all liabilities with respect to, or resulting from any amendment delay in paying, any and all stamp, excise, sales or supplement other taxes which may be payable or determined to the Initial Registration Statement or Prospectus or additional information; if the Company has elected be payable with respect to rely on Rule 430A any of the Rules and Regulations, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments Pledged Collateral or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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 transaction contemplated by the provisions hereof, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancethis 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 Company covenants (i) NewCo agrees that, as long as a Distribution could, in the reasonable discretion of Parent, be effected, (A) NewCo shall (and agrees shall cause each member of the NewCo Group to) take any action reasonably requested by Parent in order to consummate a Distribution with the several Underwriters as follows:
Tax-Free Status, and (aB) If the Initial Registration Statement has NewCo shall not already been declared effective by the Commission, the Company will use its best efforts take or fail to take any action (and it shall cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly members of the time when the Initial Registration Statement NewCo Group not to take or fail to take any postaction) which action or failure to act could reasonably be expected to prevent Parent from consummating a Distribution with Tax-effective amendment Free Status; provided that NewCo shall not be required to the Initial Registration Statement make (or cause any Affiliate of NewCo to make) any representation or covenant that is inconsistent with historical facts, as to future matters or events over which it has become effective no control, or any supplement to the Prospectus has been filed which it otherwise cannot make in good faith). NewCo agrees that, without Parent’s prior written consent, it will not take (and of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A will cause each member of the Rules and Regulations, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant NewCo Group not to Rule 430A of the Rules and Regulations with the Commission take) any action that could reasonably be expected to (1) cause Parent to cease to have “control” (within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A meaning of the Rules and Regulations; if the Company has elected to rely upon Rule 462(bSection 368(c) of the Rules and Regulations Code) of NewCo or (2) result in a Deconsolidation Event, in each case, prior to increase the size Distribution Date.
(ii) In the event of a Distribution, neither Parent (or any member of the offering registered under the Securities Act and the Rule 462(bParent Group) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, nor NewCo (or any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution member of the Securities by NewCo Group) shall take or fail to take any action, or permit or cause any member of the UnderwritersParent 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 Tax Opinion Documents or Private Letter Ruling Documents; and the Company will furnish the Representatives and counsel for the Underwriters provided, that Parent shall have provided NewCo with a copy of any proposed amendment Tax Opinion and Tax Opinion Documents (or supplement portions thereof relating to the Registration Statement NewCo Group) or Prospectus Private Letter Ruling and will not file any amendment Private Letter Ruling Documents (or supplement portions thereof relating to the Registration Statement NewCo Group), as applicable. In connection with obtaining any Tax Opinion or Prospectus Private Letter Ruling pursuant to which you Section 4(a) hereof, Parent shall reasonably object by notice consult with NewCo and consider in good faith any comments received from NewCo, in each case, to the Company 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 NewCo Group.
(iii) In the event of a Distribution, from and after having been furnished the Distribution Date, NewCo shall not (A) take any action or permit any member of the 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 copy 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 NewCo Consolidated Group ceasing to be engaged in any NewCo Active Business for purposes of Section 355(b)(2) of the Code. In the event of a reasonable Distribution, from and after the Distribution Date, Parent shall not take any action or permit any member of the Parent Group to take any action, that would reasonably be expected to cause the Distribution to fail to have Tax-Free Status.
(iv) In the event of a Distribution, from and after the Distribution Date until the first day after the Restriction Period, NewCo shall not (A) enter into any Proposed Acquisition Transaction or, to the extent NewCo has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed Acquisition Transaction to occur (whether by (x) redeeming rights under a shareholder rights plan, (y) finding a tender offer to be 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 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 filing.
amendment by Revenue Procedure 2003-48), (bE) The Company will advise youamend its certificate of incorporation (or other organizational documents), promptly after it shall receive notice or obtain knowledge thereoftake 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 issuance by the Commission of any stop order suspending the effectiveness of the Registration StatementDistribution, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectusunless, the General Disclosure Packagein each case, 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 prior to taking any such purpose; and action set forth in 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.
(c) foregoing clauses (A) Within the time during which a prospectus through (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”F), the Company will use its best efforts to comply 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, the General Disclosure Package and the Prospectus. If during such period any event occurs as NewCo shall have requested that Parent obtain a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify you and will amend the Registration Statement or supplement the Prospectus Private Letter Ruling (or, if applicable, a supplemental Private Letter Ruling) from the Prospectus 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 not yet available to prospective purchaserssatisfactory, Parent may consider, among other factors, the General Disclosure Package) 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 (at and in determining whether an opinion is satisfactory, Parent may consider, among other factors, the expense appropriateness of any underlying assumptions and representations if used as a basis for the Company) so as opinion), or Parent shall have waived the requirement to correct obtain such statement Private Letter Ruling or omission or effect such complianceUnqualified 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 Company covenants and agrees with the several Underwriters as follows:
(a) If During the Initial 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 has not already been declared effective by Statement, including any Rule 462(b) Registration Statement, the CommissionTime of Sale Disclosure Package or the Prospectus, the Company will use its best efforts shall furnish to cause the Initial Registration Statement Underwriters for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Representative or Prospectus or additional information; if counsel to the Company has elected Underwriters reasonably objects. Subject to rely on Rule 430A this Section 4(a), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Representative and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofRepresentative, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byRepresentative may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(b) The Company will advise youthe Representative, 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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) and 430A), 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) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 3 contracts
Sources: Purchase Agreement (Nanosphere Inc), Purchase Agreement (Nanosphere Inc), Purchase Agreement (Nanosphere Inc)
Covenants. The Company covenants and (a) Until the termination of this Agreement in accordance with Section 7, Stockholder agrees with the several Underwriters as follows:
(ai) If At any meeting of stockholders of the Initial Registration Statement has not already been declared effective 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 CommissionCompany 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) unless, within 14 days after the staff of the SEC has indicated to the Company that it either (i) will not review the Proxy Statement or (ii) (if the Proxy Statement is reviewed) has no further comments, the Company will use its best efforts has not mailed the Proxy Statement to cause the Initial Registration Statement 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 any post-effective amendments thereto to become effective as promptly as possible; no such proxy is given) if a Takeover Proposal has been made and the Board of Directors of the Company will notify you promptly (or the Special 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 time when Merger Agreement or (ii) considering in accordance with Section 4.2(b) of the Initial Registration Statement or any post-effective amendment Merger Agreement whether to terminate the Initial Registration Statement has become effective or any supplement Merger Agreement pursuant to the Prospectus has been filed 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 of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; effect if the Company has elected to rely on Rule 430A of the Rules and Regulations, 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 Merger Agreement is amended or otherwise modified in accordance with the provisions 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 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, Rules 424(b) and 430A the Subject Shares to any person other than pursuant to the terms of the Rules 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 Regulations; if to do, or cause to be done, and to assist and cooperate with the Company has elected other parties in doing, all things necessary, proper or advisable to rely upon Rule 462(b) of consummate and make effective, in the Rules and Regulations to increase most expeditious manner practicable, the size of the offering registered under the Securities Act Merger and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities other transactions contemplated by the Underwriters; and the Company will furnish the Representatives 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 filingMerger Agreement.
(b) The Company will advise you(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, promptly after it Stockholder shall receive notice or obtain knowledge thereof, pay to Parent on demand an amount equal to 100% of the issuance 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 Commission Stockholder and each Person executing an Other Stockholder Agreement from the consummation of any stop order suspending Alternative Transaction; provided, however, that the effectiveness 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 of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use date of any Preliminary Prospectus, the General 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) and 430A, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made this Agreement divided by the total number of shares of Company under Rule 424(b), Rule 433 Common Stock held on the date of this Agreement by each Person executing a Stockholder Agreement or Rule 462 were received in a timely manner by the Commissionan Other Stockholder Agreement.
(cii) For purposes of this Section 3(b), the Profit of Stockholder from any Alternative Transaction shall equal (A) Within the time during which a prospectus aggregate consideration received by Stockholder pursuant to such Alternative Transaction, valuing any non-cash consideration (assuming including any residual interest in the absence Company) at its fair market value on the date of Rule 172such consummation, plus (B) relating 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 Securities is required date of such consummation, less (C) the fair market value of the aggregate consideration that would have been issuable or payable to be delivered under Stockholder if it had received the Securities Act by 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 Underwriter or dealer 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 “Prospectus Delivery Period”Original Merger Consideration), Stockholder shall pay to Parent on demand an amount in cash equal to the Company will use its best efforts to comply with all requirements imposed upon it by product of (i) the Securities Actnumber of Subject Shares of Stockholder and (ii) 100% of the excess, if any, of (A) the per share cash consideration or the per share fair market value of any non-cash consideration, as now and hereafter amendedthe case may be, and received 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 General Disclosure Package and the Prospectus. If during such period any event occurs Stockholder as a result of which the Prospectus 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 be 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, however, that if the Prospectus is not yet available parties are unable to prospective purchasersagree within two Business Days after the date of such event as to such investment banking firm, then the General Disclosure Packageparties shall each select one firm, 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) would include 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 all of the consideration received by Stockholder in an untrue statement Alternative Transaction or as part of a material fact or omit the Merger Consideration consists of non-cash consideration, then Stockholder shall have the option of satisfying up to state a material fact necessary to make the statements therein, same proportion of its obligations under this Section 3(b) as the non-cash consideration represented of the total consideration in the light Alternative Transaction or the total Merger Consideration through the delivery of such non-cash consideration to Parent based on the circumstances then existingfair market value thereof. Any payment of Profit under this Section 3(b) shall (x) if paid in cash, not misleadingbe paid by wire transfer of same day funds to an account designated by Parent and (y) if paid through a transfer of non-cash consideration, be paid through delivery of such non-cash consideration to Parent, suitably endorsed for transfer.
(f) To the extent permitted by applicable law, Stockholder hereby waives any rights to appraisal or if during such period rights to dissent from the Merger that it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancemay have under applicable law.
Appears in 3 contracts
Sources: Stockholder Agreement (Infonet Services Corp), Stockholder Agreement (Bt Group PLC), Stockholder Agreement (Infonet Services Corp)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If The Company shall file a preliminary proxy statement, substantially in a form which shall be provided to the Initial Registration Statement has Purchasers and ▇▇▇▇▇▇▇▇▇ Will ▇▇▇▇▇▇▇ LLP for review, with the SEC within thirty (30) calendar days after the Closing Date, to seek stockholder approval at the next special or annual meeting of stockholders of the Company (the “Stockholder Meeting”) to approve the Company’s issuance of all of the Conversion Shares (assuming settlement of conversions solely in Common Stock) as described in this Agreement in accordance with applicable law and the rules and regulations of the Nasdaq Capital Market without giving effect to the Exchange Cap (such affirmative approval being referred to herein as the “Stockholder Approval”), and the Company shall promptly but in any event prior to December 31, 2025 call and hold the Stockholder Meeting after filing such proxy statement, use its reasonable best efforts to solicit its stockholders’ approval of such resolutions, to cause the Board of Directors of the Company to recommend to the stockholders that they approve such resolutions and to cause its officers and directors to vote their shares in favor of the Stockholder Approval. The Company shall be obligated to use its reasonable best efforts to obtain the Stockholder Approval as promptly as practicable. If, despite the Company’s reasonable best efforts the Stockholder Approval is not already been declared effective by the Commissionobtained at such Stockholder Meeting Deadline, the Company will use its best efforts shall cause an additional Stockholder Meeting to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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(bbe held every ninety (90) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingdays thereafter until such Stockholder Approval is obtained.
(b) The Company will advise you, promptly Within 30 days 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 General 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. AdditionallyClosing, the Company agrees that it shall comply enter into an agreement with the provisions of Rules 424(b) and 430A, as applicable, under Designated Agent in the Securities Act and will use its reasonable efforts form mutually agreed to confirm that any filings made by the Company under Rule 424(b)parties, Rule 433 or Rule 462 were received in a timely manner by order to preserve to the Commissionextent possible the Company’s net operating losses (“Net Operating Losses”) in accordance with Section 382 of the IRC.
(c) On the date of this Agreement or prior to 9:00 A.M., New York City time, on the first (1st) Business Day immediately following the date of this Agreement, the Company shall issue a press release or file with the Commission a Current Report on Form 8-K (the “Disclosure Document”) disclosing all material terms of this Agreement and the Notes and disclosing any other material, non-public information that the Company or any of its representatives, Affiliates, officers, directors, or employees or agents has provided to the Purchasers or any of the Purchasers’ Affiliates, attorneys, agents or representatives at any time prior to the issuance or filing of the Disclosure Document. Within two (2) Business Days immediately following the date of this Agreement, the Company shall file with the Commission a Current Report on Form 8-K attaching this Agreement (and all schedules and exhibits to this Agreement) and the Notes as exhibits on such Current Report on Form 8-K. The Company shall provide the Purchasers with a draft of the Disclosure Document sufficiently in advance to provide the Purchasers with a reasonable opportunity to review and provide comments to the Company with respect to the Disclosure Document, which comments the Company shall consider in good faith. Upon the issuance of the Disclosure Document, the Purchasers and the Purchasers’ Affiliates, attorneys, agents and representatives shall not be in possession of any material, non-public information received from the Company, any Subsidiary or any of their respective representatives, Affiliates, officers, directors, or employees or agents. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until the issuance or filing of the Disclosure Document, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Upon the issuance or filing of the Disclosure Document, each Purchaser shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with the Company, any Subsidiary or any of their respective representatives, Affiliates, officers, directors, employees or agents. The Company understands and confirms that such Purchaser and its Affiliates will rely on the foregoing representations in effecting transactions in securities of the Company. Notwithstanding anything in this Agreement to the contrary, the Company (A) Within shall not publicly disclose the time during which a prospectus name of any Purchaser or any of its Affiliates or advisers, or include the name of such Purchaser or any of its Affiliates or advisers in any press release, without the prior written consent of such Purchaser and (assuming B) shall not publicly disclose the absence name of Rule 172any Purchaser or any of its Affiliates or advisers, or include the name of such Purchaser or any of its Affiliates or advisers in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of such Purchaser, except (1) relating as required by the federal securities laws, rules or regulations and (2) to the Securities extent such disclosure is required to be delivered by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the Securities Act by any Underwriter regulations of the Nasdaq Capital Market, in which case of clause (1) or dealer (the “Prospectus Delivery Period”2), the Company will use its best efforts to comply shall provide such Purchaser with all requirements imposed upon it prior written notice (including by the Securities Act, as now and hereafter amendede-mail) of such permitted disclosure, 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 General Disclosure Package and the Prospectus. If during shall reasonably consult with such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 Purchaser regarding such period it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancedisclosure.
Appears in 3 contracts
Sources: Note Purchase Agreement (Heron Therapeutics, Inc. /De/), Note Purchase Agreement (Rubric Capital Management LP), Note Purchase Agreement (Heron Therapeutics, Inc. /De/)
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you the Representatives promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed 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 Initial Registration Statement or Prospectus or for 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); the Company will prepare and file with the Commission, promptly upon your the Representatives’ request, any amendments or supplements to the Registration Statement Statement, Time of Sale Disclosure Package or Prospectus that, based on in the advice of counselRepresentatives’ opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 Statement, Time of Sale Disclosure Package or Prospectus to which you the Representatives shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(bii) The Company will advise youthe Representatives, 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 General 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) 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.
(ciii) (A) Within the time during which a prospectus (assuming or in lieu thereof the absence of notice referred to in Rule 172173(a)) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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, the General 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 General 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 investors, the General Time of Sale Disclosure Package) to comply with the Securities Act, the Company will promptly notify you the Representatives and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Time of Sale Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Purchase Agreement (Hallmark Financial Services Inc), Purchase Agreement (Hallmark Financial Services Inc)
Covenants. The Company covenants and agrees with the several Underwriters as followsEach Shareholder hereby:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, agrees upon receipt of written inquiry from the Company will use its best efforts or Parent to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; notify the Company will notify you promptly and Parent of the time when the Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and number of any request New Shares acquired by such Shareholder after the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules date hereof and Regulations, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.Expiration Date. Any New Shares shall automatically be subject to the applicable terms of this Agreement as though owned by such Shareholder on the date hereof;
(b) The agrees to (i) permit the Company will advise youand Parent to publish and disclose, promptly after it shall receive notice or obtain knowledge thereofincluding 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 issuance 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 Commission of any stop order suspending Company, Parent or the effectiveness of Shareholders); provided that the Registration StatementCompany or Parent, as the case may be, shall give each Shareholder and its legal counsel a reasonable opportunity to review and comment on such publications or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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; disclosures prior to being made public and (ii) give to Parent and the Company will as promptly use its best efforts as practicable any information related to prevent the issuance foregoing that Parent or the Company may reasonably require for the preparation of any stop order or disclosure documents to obtain its withdrawal if such a stop order should be issuedfiled with the SEC. Additionally, Each Shareholder agrees to promptly notify each of Parent and the Company agrees that it shall comply of any required corrections with respect to any written information supplied by such Shareholder specifically for use in any such disclosure document, if and to the provisions of Rules 424(b) and 430A, as applicable, under the Securities Act and will use its reasonable efforts to confirm extent such Shareholder becomes aware that any filings made by the Company under Rule 424(b), Rule 433 such information shall have become false or Rule 462 were received misleading in a timely manner by the Commission.any material respect; and
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), shall and does authorize the Company will use or its best efforts counsel to comply (i) notify Parent’s transfer agent that there is a stop transfer order with respect to all requirements imposed upon 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 by shall on the Securities Act, as now earlier of the (x) Expiration Date and hereafter amended, and by (y) 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 General Disclosure Package and the Prospectus. If during such period any event occurs as a result of date on which the Prospectus Parent Shareholder Approval is obtained further notify Parent’s transfer agent that the stop transfer order (or 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 to all of the Company Shares (and that this Agreement places limits on the voting and transfer of the Company Shares); provided that if the Prospectus is not yet available to prospective purchasersCompany or its counsel gives such notification, it shall on the General 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 earlier of the circumstances then existing, not misleading, or if during such period it is necessary to amend (x) Expiration Date and (y) the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities Act, date on which the Company will promptly Shareholder Approval is obtained further notify you and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company’s transfer agent that the stop transfer order (and all other restrictions) so have terminated as to correct of such statement or omission or effect such compliancedate.
Appears in 2 contracts
Sources: Voting and Support Agreement (Baltic Trading LTD), Voting and Support Agreement (Genco Shipping & Trading LTD)
Covenants. (a) The Company covenants Offerors jointly and agrees severally covenant and agree with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); the Company Offerors 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the your distribution of the Securities by the UnderwritersCapital Securities; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement or Prospectus and Offerors 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.
(bii) The Company Offerors will advise youthe Underwriters, promptly after it they 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 General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company Offerors will promptly use its their 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.
(c) (Aiii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Capital Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company Offerors will use its best efforts to 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 Capital Securities as contemplated by the provisions hereof, the General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities Act, the Company Offerors will promptly notify you the Underwriters and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iv) The Offerors will use their best efforts to qualify the Capital Securities and the Junior Subordinated Debentures for sale under the securities laws of such jurisdictions as the Underwriters may reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Capital Securities, except that the Offerors 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.
(v) The Offerors will furnish to the Underwriters copies of the Registration Statement (three of which will be signed and will include all exhibits), each of the Preliminary Prospectuses, the Prospectus, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case as soon as available and in such quantities as each Underwriter may from time to time reasonably request.
(vi) During a period of five years commencing with the date hereof, the Company will furnish to the Underwriters copies of all periodic and special reports furnished to the stockholders of the Company and all information, documents and reports filed with the Commission.
(vii) The Company will make generally available to its security holders and holders of the Capital Securities 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 (including transfer taxes allocated to the respective transferees) incident to the performance of the obligations of each Offeror under this agreement, (B) all expenses and fees (including, without limitation, fees and expenses of each Offeror'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 Capital 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 Underwriters' counsel incurred in connection with the qualification of the Capital Securities for offering and sale by you or by dealers under the securities or blue sky laws of the states and other jurisdictions which you shall designate, (D) the fees and expenses of any transfer agent or registrar, (E) the filing fees incident to any required review by the National Association of Capital Securities Dealers, Inc. ("NASD") of the terms of the sale of the Capital Securities, (F) listing fees, if any, (G) the fees and expenses of the Indenture Trustee, including the fees and disbursements of counsel for the Indenture Trustee in connection with the Indenture and Junior Subordinated Debentures, (H) the fees and expenses of the Property Trustee, including the fees and disbursements of counsel for the Property Trustee in connection with the Trust Agreement and the Certificate of Trust, and (I) all other costs and expenses incident to the performance of the Offerors' obligations hereunder that are not otherwise specifically provided for herein. If the sale of the Capital Securities provided for herein is not consummated by reason of action by either Offeror 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 either Offeror to perform any agreement on its part to be performed, or because any other condition of your obligations hereunder required to be fulfilled by either Offeror is not fulfilled, the Company will reimburse you for all out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriters in connection with their investigation, preparing to market and marketing the Capital Securities or in contemplation of performing their obligations hereunder. Neither Offeror shall in any event be liable to you for loss of anticipated profits from the transactions covered by this Agreement.
(ix) The Offerors will apply the net proceeds from the sale of the Capital Securities to be sold by the Trust hereunder for the purposes set forth in the Prospectus and will file such reports with the Commission with respect to the sale of the Capital Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 of the Rules and Regulations.
(x) The Offerors have 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 either Offeror to facilitate the sale or resale of the Capital 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.
(xi) Neither Offeror will 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.
(xii) The Offerors will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Capital Securities by you if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information will be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 2 contracts
Sources: Purchase Agreement (Community First Bankshares Inc), Purchase Agreement (Community First Bankshares Inc)
Covenants. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(ai) If During the Initial Registration Statement has not already been declared effective 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 CommissionUnderwriter (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 will use its best efforts shall furnish to cause the Initial Registration Statement Underwriter for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Underwriter or Prospectus or additional information; if the Company has elected its counsel reasonably objects. Subject to rely on Rule 430A this Section 4(i), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Underwriter and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofUnderwriter, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byUnderwriter may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(bii) The Company will advise youthe 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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) and 430A), 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.
(ciii) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 2 contracts
Sources: Purchase Agreement (Valuevision Media Inc), Purchase Agreement (Micromet, Inc.)
Covenants. The Company 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 Borrower hereby 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 several Underwriters as follows:existing Note (save that the 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) If except for those asset transfers or disposals between the Initial Registration Statement has not already been declared effective by the CommissionBorrower and its Subsidiaries on an arms length basis, the Company will use sell, lease, transfer or otherwise dispose of its best efforts business or assets in amounts equal to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly 20% or more of the time when the Initial Registration Statement its then total assets, whether in a single transaction or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.an aggregate basis;
(b) The Company will advise you, promptly after it shall receive notice make any material change to the scope or obtain knowledge thereof, nature 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 General 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 purposeits business; 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.
(c) conduct any transaction which is not at arms length basis; (d) create, incur, increase or suffer or permit to exist any 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) Within the time during security interests which a prospectus (assuming the absence of Rule 172) relating are existing and have been disclosed to the Securities is Agent and the Banks in writing prior to the date hereof or security interests required to be delivered 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 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) except for the Acquisition, commencing from the date hereof, make any investment in any other companies in an accumulative aggregate amount of more than NT$ 10,000,000,000, or (d) acquire material assets of any other companies; provided, that the consent of the Majority Banks shall not be required for the following: (i) investment in any Subsidiary existing prior to the date hereof, (ii) entering into a merger under which the Securities Act by any Underwriter Borrower is the surviving entity, (iii) merger or dealer (the “Prospectus Delivery Period”consolidation with its Subsidiary(ies), or (iv) effecting a spin-off under which the Company will use its best efforts assignee of the assets is a Subsidiary and would not cause a violation to comply with all requirements imposed upon it by Section 8.5(a) hereof; so long as any of the Securities Actabove shall not cause any material adverse impact on the Borrower’s business operation, as now and hereafter amended, and by the Rules and Regulations, as financial condition or ability to perform hereunder.
8.7. The Borrower shall from time to time upon request by the Agent provide information, records and documents in forcerespect of the Acquisition Contract, so far as necessary this Agreement and its ability to perform same, to the extent it does not interfere with the normal operations of the Borrower, and shall permit the continuance representatives or agents of sales the Agent to enter the premises of the Borrower to review (or dealings make copies or extracts of) the various accounts, records or documents that are relevant to the Borrower’s ability to perform under the Acquisition Contract, this Agreement or other related agreements. To the extent deemed to be necessary by the Majority Banks, the Agent may retain outside persons to conduct such inspection; provided, that all such persons participating in the Securities 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 unconsolidated (and consolidated, if available) basis, including therein its balance sheet as contemplated of the end of such fiscal quarter, statement of its income and cash flow statement. Each of such reports shall be prepared by the provisions hereofBorrower, the General Disclosure Package reviewed by a creditable independent public accounting firm in accordance with applicable generally accepted audit standards, 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 General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, information contained therein shall also be presented 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 investors, the General Disclosure Package) to comply accordance with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceapplicable 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 Company covenants agrees that, for the duration of the Support Period, the Company shall, and agrees with shall cause each of its subsidiaries included in the several Underwriters as followsdefinition of Company, to:
(ai) If (A) support and use commercially reasonable efforts to consummate and complete the Initial Registration Statement has not already been declared effective Restructuring and all transactions contemplated under this Agreement (including, without limitation, those described in the Term Sheet and once filed, the Prepackaged Plan) including, without limitation, (1) take any and all reasonably necessary actions in furtherance of the Restructuring and the transactions contemplated under this Agreement, including, without limitation, as set forth in the Term Sheet and, once filed, the Prepackaged Plan, (2) subject to the satisfaction of the Filing Conditions (unless waived by the CommissionCompany), commence the Chapter 11 Case on or before November 30, 2017 (the “Outside Petition Date,” and the actual commencement date, the Company will “Petition Date”) and complete and file, within the timeframes contemplated herein, the Prepackaged Plan, the Disclosure Statement, and the other Definitive Documents, and (3) use its best commercially reasonable efforts to cause obtain orders of the Initial Registration Bankruptcy Court approving the Disclosure Statement and confirming the Prepackaged Plan within the timeframes contemplated by this Agreement; (B) use commercially reasonable efforts to obtain any post-effective amendments thereto and all required regulatory approvals for the Restructuring embodied in the Definitive Documents, including the Prepackaged Plan; (C) not take any action that is inconsistent with, or to become effective as promptly as possible; the Company will notify you promptly alter, delay, impede, or interfere with, approval of the time when Disclosure Statement, confirmation of the Initial Registration Statement Prepackaged Plan, or any post-effective amendment consummation of the Prepackaged Plan and the Restructuring, in the case of each of clauses (A) through (C) to the Initial 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 Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsextent consistent with, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, the fiduciary duties of the board of director of the Company;
(ii) not commence an avoidance action or other legal proceeding that challenges the validity, enforceability, or priority of the Term Loans or obligations under the Credit Agreement;
(iii) if the Company receives an unsolicited bona fide unsolicited proposal or expression of interest in undertaking an Alternative Transaction that the board of directors of the Company, determines in its good-faith judgment provides a higher or better economic recovery to the Company’s stakeholders than that set forth in this Agreement and such Alternative Transaction is from a proponent that the board of directors of the Company has reasonably determined is capable of timely consummating such Alternative Transaction, the Company will within 48 hours of the receipt of such proposal or expression of interest, notify counsel to the Requisite Term Lenders and counsel to the Administrative Agent of the receipt thereof, with such notice to include the material terms thereof, including the identity of the Person or group of Persons involved;
(iv) provide draft copies of all material motions or applications and other documents (including all “first day” and “second day” motions and orders, the Prepackaged Plan, the Disclosure Statement, ballots and other solicitation materials in respect of the Prepackaged Plan and any proposed amended version of the Prepackaged Plan or the Disclosure Statement, and a proposed confirmation order) the Company intends to file with the Bankruptcy Court to ▇▇▇▇▇▇▇▇ and to ▇▇▇▇▇ ▇▇▇▇, if reasonably practical, at least five (5) business days prior to the date when the Company intends to file any such pleading or other document (provided that if delivery of such motions, orders or materials (other than the Prepackaged Plan, the Disclosure Statement, a confirmation order or adequate protection order) at least five (5) business days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing) and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing with the Bankruptcy Court;
(v) file such “first day” motions and pleadings reasonably determined by the Company, in form and substance reasonably acceptable to the Requisite Term Lenders, to be necessary, and to seek interim and final (to the extent necessary) orders, in form and substance reasonably acceptable to the Company and the Requisite Term Lenders, from the Bankruptcy Court approving the relief requested in such “first day” motions;
(vi) subject to appropriate confidentiality arrangements, provide to the Consenting Term Lenders’ professionals, upon reasonable advance notice to the Company; (A) reasonable access (without any material disruption to the conduct of the Company’s business) during normal business hours to the Company’s books, records, and facilities; (B) reasonable access to the respective management and advisors of the Company for the purposes of evaluating the Company’s finances and operations and participating in the planning process with respect to the Restructuring; (C) prompt access to any information provided to any existing or prospective financing sources (including lenders under any debtor-in-possession and/or exit financing); and (D) prompt and reasonable responses to all reasonable diligence requests;
(vii) use its commercially reasonable efforts to support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third-party approvals to consummate the Transactions;
(viii) promptly pay all prepetition and postpetition reasonable and documented fees and expenses of (x) ▇▇▇▇▇▇▇▇, FTI Consulting Inc. (“FTI”), and one firm acting as local counsel for ▇▇▇▇▇▇▇▇, if any, in each case in accordance with the terms of their respective engagement letters with the Company, and (y) the Administrative Agent, ▇▇▇▇▇ ▇▇▇▇, and one firm acting as local counsel for ▇▇▇▇▇ ▇▇▇▇, if any, in each case, in accordance with the Credit Agreement;
(ix) not, nor encourage any other person or entity to, take any action which would, or would reasonably be expected to, breach or be inconsistent with this Agreement or delay, impede, appeal, or take any other negative action, directly or indirectly, to interfere with the acceptance, confirmation, or consummation of the Plan or implementation of the Restructuring;
(x) subject to applicable laws, use commercially reasonable efforts to, consistent with the pursuit and consummation of the Restructuring and the transactions contemplated thereby, preserve intact in all material respects the current business operations of the Company and its subsidiaries;
(xi) subject to applicable laws, use commercially reasonable efforts to, consistent with the pursuit and consummation of the Restructuring and the transactions contemplated thereby, preserve intact in all material respects the current business operations of the Company and its subsidiaries (other than as consistent with applicable fiduciary duties), keep available the services of its current officers and material employees (in each case, other than voluntary resignations, terminations for cause, or terminations consistent with applicable fiduciary duties) and preserve in all material respects its relationships with customers, sales representatives, suppliers, distributors, and others, including the warehouse lenders, in each case, having material business dealings with the Company (other than terminations for cause or consistent with applicable fiduciary duties)
(xii) provide prompt written notice to the Requisite Term Lenders between the date hereof and the Effective Date of (A) receipt of any written notice from any third party alleging that the consent of such party is or may be necessary or advisable required in connection with the distribution transactions contemplated by the Restructuring, (B) receipt of any written notice from any governmental body in connection with this Agreement or the transactions contemplated by the Restructuring, (C) receipt of any written notice of any proceeding commenced, or, to the actual knowledge of the Securities Company, threatened against the Company, relating to or involving or otherwise affecting in any material respect the transactions contemplated by the Underwriters; Restructuring and (D) receipt of any notice of termination of the Senior Notes RSA;
(xiii) unless otherwise agreed by the Company and the Company will furnish applicable firm, on the Representatives 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 date that is at least one (1) calendar day prior to the filing.Petition Date, pay to (A) ▇▇▇▇▇▇▇▇, (B) one firm acting as local counsel for ▇▇▇▇▇▇▇▇, if any, (C) FTI, (D) the Administrative Agent, (E) ▇▇▇▇▇ ▇▇▇▇, and (F) one firm acting as local counsel for ▇▇▇▇▇ ▇▇▇▇, if any in each case, (x) all reasonable and documented fees and expenses accrued but unpaid as of such date, whether or not such fees and expenses are then due, outstanding, or otherwise payable in connection with this matter and (y) fund or replenish, as the case may be, any retainers reasonably requested by ▇▇▇▇▇▇▇▇ or FTI, in each case in accordance with the terms of their respective engagement letters with the Company; and
(bxiv) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of on 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 General 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. AdditionallySupport Effective Date, the Company agrees that it shall comply transfer $37,500,000 in cash (the “Effective Date Prepayment”) to the Administrative Agent for application of such cash as a voluntary prepayment of the Term Loans pursuant to Section 2.12(a) to the Credit Agreement, with such prepayment to be applied to the provisions Term Loans in direct order of Rules 424(bmaturity. The Consenting Term Lenders constituting the Required Lenders waive (i) the prior notice requirement with respect to the Effective Date Prepayment required pursuant to Section 2.12(a) 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.
(c) of the Credit Agreement and (Aii) Within the time during which a prospectus (assuming requirement in Section 2.12(a) of the absence Credit Agreement that voluntary prepayments of Rule 172) relating term loans be in an amount that is an integral multiple of $1,000,000 with respect to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceEffective Date Prepayment.
Appears in 2 contracts
Sources: Restructuring Support Agreement, Restructuring Support Agreement (Walter Investment Management Corp)
Covenants. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(a) If Immediately following the Initial Registration Statement has not already been declared effective by the Commissionexecution of this Agreement, the Company will use its best efforts (x) prepare the Final Prospectus that complies with the Securities Act and 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 cause all offerings of pass through certificates under the Initial 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 post-effective amendments thereto 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 become effective 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 Commission for filing pursuant to Rule 424 and will furnish to the Underwriter as promptly many copies of the Final Prospectus as possible; you shall reasonably request.
(b) 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 notify promptly advise you promptly of
(i) the effectiveness of the time when the Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has become effective or Statement, (ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus has been filed and of or any document that would as a result thereof be incorporated by reference in the Final Prospectus, (iii) any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 Final Prospectus or Prospectus for any additional information relating thereto or to which you shall reasonably object any document incorporated by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
reference therein, (biv) 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, Statement or any post-effective amendment thereto the institution or preventing or suspending the use threatening of any Preliminary Prospectusproceeding for that purpose, and (v) the General Disclosure Package, receipt by the Prospectus or Company of any Issuer Free Writing Prospectus, of notification with respect to the suspension of the qualification of the Securities Class B Certificates for offering or sale in any jurisdiction, jurisdiction or of the initiation institution or threatening of any proceeding for any such purpose; and the . The Company will promptly use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain its as soon as possible the 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 Commissionthereof.
(c) (A) Within the If, at any time during which when a prospectus (assuming the absence of or in lieu thereof, a notice referred to in Rule 172173(a)) relating to the Securities Class B Certificates is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Final Prospectus (as then amended or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances then existingunder which they were made, not misleading, or if during such period it is shall 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 such amendment to the Registration Statement or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Class B Certificates). Neither the Underwriter’s consent to, nor the Underwriter’s delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 4 hereof.
(d) 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 reasonably object.
(e) 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 if in lieu thereof, a notice referred to in Rule 173(a)) by the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with Underwriter may be required by the Securities Act, the Company will promptly notify you furnish as many copies of any Statutory Prospectus, the Final 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 ▇▇▇▇▇, except to the extent permitted by Regulation S-T or required under Rule 424(e).
(f) 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 amend 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 jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any such jurisdiction in which 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 cooperate with the Underwriter 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 the Underwriter represents and agrees that, unless it obtains 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 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 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) Between the date of this Agreement and the Closing Time, the Company will not, without the Underwriter’s prior consent, offer, sell or enter into any agreement to sell any public debt securities registered under the Securities Act (other than the Certificates) or any debt securities which may be 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 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 the expired registration statement relating to the Class B Certificates. References herein to the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to correct shall include such new automatic shelf registration statement or omission or effect such compliancenew shelf registration statement, as the case may be.
Appears in 2 contracts
Sources: Underwriting Agreement (American Airlines Inc), Underwriting Agreement
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If During the Initial 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 has not already been declared effective by Statement, including any Rule 462(b) Registration Statement, the CommissionTime of Sale Disclosure Package or the Prospectus, the Company will use its best efforts shall furnish to cause the Initial Registration Statement Underwriters for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Representative or Prospectus or additional information; if counsel to the Company has elected Underwriters reasonably objects. Subject to rely on Rule 430A this Section 4(a), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the information omitted therefrom pursuant to 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 with or as the Commission within Representative and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofRepresentative, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byRepresentative may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(b) The Company will advise youthe Representative, 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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) and 430A), 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) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs shall occur as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General Time of Sale Disclosure Package) to comply with the Securities Act, the Company will promptly notify you the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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 Securities 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 amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representative may from time to time reasonably request.
(f) During a period of five years commencing with the date hereof, the Company will furnish or make available to the Underwriters, upon receipt of a written request therefor, copies of all periodic and special reports furnished to the stockholders of the Company and all information, documents and reports filed with the Commission, the FINRA or any securities exchange (other than any such information, documents and reports that are filed with the Commission electronically via E▇▇▇▇ or any successor system).
(g) 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.
(h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is otherwise terminated, will pay or cause to be paid (A) all expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the 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 Company a. These covenants shall run with the land, and all future conveyances of 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 agrees with the several Underwriters as follows:
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) If the Initial Registration Statement has not already been declared effective by the CommissionDeveloper as long as the Developer owns any lot in the subdivision; (b) 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 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 Company will use its best efforts to cause non-performing party or the Initial Registration Statement and party violating any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when conditions, covenants and restrictions shall reimburse the Initial Registration Statement or Developer and/or individual Owners for all out-of-pocket expenses (including actual attorneys' fees and court costs) incurred in successfully enforcing these conditions, covenants, and restrictions.
e. Variations in any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request these covenants may be permitted by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules Developer where he is reasonably satisfied that such variations will be pleasing and Regulations, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations generally in keeping with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A character 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement or Prospectus surrounding properties and will not file any amendment or supplement be a detriment to the Registration Statement or Prospectus to which you shall reasonably object by notice to subdivision as a whole. After 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 Developer no longer owns 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 General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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 lot in the Securities subdivision, requests for variations may be submitted to such review committee(s) as contemplated by may be convened from among the provisions hereof, property owners within the General Disclosure Package subdivision for consideration and the Prospectus. If during such period any event occurs as a result of which the Prospectus (approval or if the Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancerejection.
Appears in 2 contracts
Sources: Restrictive Covenants, Restrictive Covenants
Covenants. The Company Seller or COAF, as the case may be, covenants and agrees with the several Underwriters as followseach Underwriter that:
(a) If The Seller will prepare a Prospectus Supplement setting forth the Initial amount of Class A Notes covered thereby and 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 Registration Statement has 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 already been declared effective by the Commission, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possiblebe unreasonably withheld or delayed); the Company Seller will notify you promptly of immediately advise the time Representative and its counsel: (i) when notice is received from the Initial Registration Statement or Commission that any post-effective amendment to the Initial Registration Statement has become or will become effective or any supplement to the Prospectus has been filed and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A offer and sale of the Rules and Regulations, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments Class A Notes or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment proceedings or supplement examinations that may lead to the Registration Statement such an order or Prospectus and will not file any amendment or supplement to the Registration Statement or Prospectus to which you shall reasonably object communication, whether 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 any Preliminary Prospectus, the General 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 Commission or threatening of any proceeding for authority administering any such purpose; state securities or Blue Sky law, as soon as practicable after the Seller is advised thereof, and the Company will promptly use its best reasonable efforts to prevent the issuance of any stop such order or communication and to obtain as soon as possible its withdrawal lifting, 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.
(c) (Ab) Within the time period during which a prospectus (assuming the absence of Rule 172) relating to the Securities Class A Notes is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company Seller will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, 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 Securities Class A Notes as contemplated by the provisions hereof, the General Disclosure Package hereof and the Prospectus. If during such period If, at any time when a Prospectus relating to the 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 if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances then existingunder which they were made, not misleading, or if during such period it is necessary at any time to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities ActAct or the Rules and Regulations, the Company Seller will promptly notify you prepare and will amend (subject to review and no reasonable objection by the Registration Statement Representative as described in Section 5(a)) file with the Commission, an amendment or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to 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 holders 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 as soon as practicable, a statement which will satisfy the provisions of Section I (a) of the Act and Rule 158 of the Commission with respect to the Class A Notes.
(d) The Seller will furnish to the Representative copies of the Registration Statement (at least one copy to be delivered to the Representative will be conformed and will include all documents and exhibits thereto or incorporated by reference therein), the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representative reasonably requests.
(e) The Seller will assist the Underwriters in arranging for the qualification of the Class A Notes for sale and the determination of their eligibility for investment under the laws of such 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 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 any jurisdiction in which it is now not subject to service of process.
(f) 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 Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Representative of such timely filing.
(g) So long as any of the 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 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 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 COAF 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 Company covenants and For so long as this Agreement is in effect, except as otherwise contemplated by the Merger Agreement or the Exchange Agreement, 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, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), any Subject Shares or Shares the Stockholder then has or will have the right to acquire pursuant to options, warrants, convertible securities or other such rights to purchase Shares granted to the Stockholder by the Company; (ii) grant any powers of attorney, consents, or proxies with respect to any shares that then constitute Subject Shares, deposit any of the Subject Shares into a voting trust, enter into a voting or option agreement with respect to any of the Subject Shares inconsistent with the several Underwriters 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 follows:
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 (aiv) If permit, cause, or take any action, or fail to take any action, which would make any representation, warranty, covenant, or other undertaking of the Initial Registration Statement has not already been declared effective 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 Commissionprovisions of this Agreement. As used in this Agreement, "person" shall have the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 meaning specified in accordance with the provisions of, Rules 424(bSections 3(a)(9) and 430A of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b13(d)(3) of the Rules and Regulations to increase the size Securities Exchange Act of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 any Preliminary Prospectus, the General 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) and 430A1934, 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 Commissionamended.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Voting Agreement (Interdent Inc), Voting Agreement (Green Equity Investors Iii Lp)
Covenants. The Company covenants and agrees with the several Underwriters as followseach Representative and each Underwriter that:
(ai) If reasonably requested by you in connection with the Initial Registration Statement has not already been declared effective by offering of the CommissionOffered Securities, the Company will use its best efforts prepare a Preliminary Prospectus containing such information concerning the Securities as you and 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 cause purchase, the Initial 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 Commission 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, the Prospectus and the Prospectus Supplement as you shall reasonably request.
(b) 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 a result of which it is necessary, in 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 Securities Act Regulations, 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 post-effective amendments thereto such amendment or supplement shall constitute a waiver of the conditions set forth in Section 5.
(c) During the period when the Prospectus is required by the Securities Act to become effective be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 4(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(d) 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 promptly as possible; 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 reasonably object.
(e) 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 promptly immediately, and confirm the notice in writing, (i) of the time when the Initial Registration Statement or effectiveness of any post-effective amendment to the Initial Registration Statement has become effective Statement; (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus has been filed and or any document that would as a result thereof be incorporated by reference in the Prospectus; (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement; (iv) of any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement Prospectus or Prospectus for additional information relating thereto or to any document incorporated by reference in the 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.
(bv) 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 any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the initiation institution or threatening of any proceeding for any of such purpose; and the purposes. The Company will promptly use its best efforts every reasonable effort to prevent the issuance of any such stop order or to obtain its withdrawal of any order suspending such qualification and, if any such a stop order should be is issued. Additionally, the Company agrees will use every reasonable effort to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many copies of the 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 request, and has furnished or will furnish to you, for each other Underwriter, one copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(g) The Company will use its reasonable best efforts to qualify 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 Capital Securities into or 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 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 shall comply 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 Rules 424(b) and 430A, as applicable, under Rule 158 of the Securities Act and will use its reasonable efforts 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 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 CommissionOffered Securities.
(ci) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating If and to the Securities is required to be delivered under extent specified in the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)applicable Terms Agreement, the Company will use its best efforts to comply with all requirements imposed 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 it 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 Securities Act, as now and hereafter amended, and by Closing Date with respect to the Rules and Regulations, as from time to time in force, so far as necessary to permit applicable Terms Agreement.
(j) For a period of five years after the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities ActClosing Date, the Company will promptly notify 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 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 amend pay, or reimburse the Registration Statement Underwriters, for any reasonable expenses (including fees and disbursements of counsel) incurred by them in connection with the 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 investment 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 supplement Representatives to the Company for use in the Prospectus (or, and if the such Prospectus is not yet available required to prospective purchasersbe reprinted pursuant to Sections 4(b) and 4(d), the General Disclosure Package) (at then the expense of reprinting such Prospectus shall be borne, severally, by the CompanyUnderwriter or Underwriters who shall have furnished such incorrect information to such Representative or Representatives.
(m) so The Company will apply the net proceeds from the sale of the Securities as to correct such statement or omission or effect such complianceset forth in the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Keycorp /New/), Underwriting Agreement (Keycorp /New/)
Covenants. The Company covenants and agrees with the several Underwriters that so long as followsthis Note shall be outstanding:
(a) If 3.1 The Company will maintain an office at West Des Moines, Iowa or at such other place in the Initial Registration Statement has not already been declared effective by the Commission, United States as the Company may designate by written notice given pursuant to Section 2.3, where notices, presentations and demands to or upon the Company in respect of this Note may be made or given.
3.2 The Company will use its best efforts promptly cause to be paid and discharged all lawful taxes, assessments and governmental charges or levies imposed upon the Company or any Subsidiary or upon the income and profits of, or upon any property belonging to the Company or any Subsidiary before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such property or any part thereof; provided, however, that the Company shall not be required to cause to be paid and discharged any such tax, assessment, charge, levy or claim so long as the Initial 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 Initial Registration Statement amount or any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request validity thereof shall be contested in good faith by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsappropriate proceedings, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish or such Subsidiary, as the Representatives 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 case may be, shall set aside on its books reserves with respect thereto which you shall reasonably object by notice to the Company after having been furnished a copy a reasonable and the independent public accountants who are at the time prior employed to audit the filingbooks and accounts of the Company or such Subsidiary consider adequate.
(b) 3.3 The Company will advise you, promptly after it shall receive notice at all times cause its physical property and the physical property of its Subsidiaries used or obtain knowledge thereof, desirable in the conduct of the issuance by the Commission of any stop order suspending the effectiveness business of the Registration Statement, Company or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required Subsidiaries to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)maintained, the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Actpreserved, as now protected and hereafter amendedkept in good repair, working order and condition, and by the Rules and Regulations, as from time to time in forcecause to be made all needful and proper repairs, replacements, betterments and improvements thereto, so far as necessary to permit that the continuance of sales of or dealings business carried on in connection therewith may in the Securities as contemplated by opinion of the provisions hereofCompany be properly and advantageously conducted at all times; provided, however, that nothing in this Section 3.3 shall require the General Disclosure Package and the Prospectus. If during such period Company or any event occurs as a result of which the Prospectus (Subsidiary to maintain, preserve, protect or if the Prospectus is not yet available to prospective purchaserskeep in good repair, the General Disclosure Package) would include an untrue statement of a material fact working order or omit to state a material fact necessary to make the statements thereincondition any physical property which, 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense sole discretion of the Company, is obsolete or surplus or unfit for use or may not be used advantageously in the conduct of the business of the Company or such Subsidiary, as the case may be.
3.4 The Company will at all times keep, and cause each Subsidiary to keep, true and complete books of record and accounts in accordance with generally accepted accounting principles and practices.
3.5 The Company will at all times cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights and franchises, and the corporate existence, rights and franchises of each Subsidiary, and comply with and cause each Subsidiary to comply with, all laws and governmental requirements applicable to the Company or such Subsidiary; provided, however, that nothing in this Section 3.5 shall (1) so require the Company or any Subsidiary to maintain, preserve or renew any right or franchise which in the opinion of the board of directors of the Company is not necessary or desirable in the conduct of the business of the Company or of such Subsidiary, as the case may be; or (2) prevent the termination of the corporate existence of any Subsidiary if in the opinion of the board of directors of the Company such termination is in the best interest of the Company and not disadvantageous to correct such statement the holders of the Notes; or omission (3) prevent any consolidation or effect such compliancemerger involving the Company or a Subsidiary.
3.6 The Company will at all times maintain adequate general comprehensive liability insurance coverage on its business and properties, including product liability and business interruption riders and shall supply evidence of the same to the payee when requested.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Morton Industrial Group Inc), Asset Purchase Agreement (Morton Industrial Group Inc)
Covenants. The Company covenants From and agrees with after the several Underwriters as follows:
execution and delivery of this Agreement until the Termination Date, each Stockholder hereby: (a) If agrees not to exercise, assert or perfect, or attempt to exercise, assert or perfect, any rights of appraisal or rights of dissent from the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment Merger that such Stockholder may have with respect to the Initial 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 Initial Registration Statement or Prospectus or additional informationCovered Securities; if the Company has elected to rely on Rule 430A of the Rules and Regulations, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 agrees to permit Parent and Acquisition Sub to publish and disclose in the Offer Documents and, if the Required Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance Stockholder Vote is required by the Commission of any stop order suspending DGCL, the effectiveness of the Registration Proxy Statement, if, in each case, that Parent, Acquisition Sub or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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) and 430ACompany, 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) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities reasonably determines is required to be delivered disclosed by applicable Legal Requirements, such Stockholder’s identity and ownership of Company Common Stock and the nature of the Stockholder’s commitments, arrangements and understandings under the Securities Act by this Agreement; (c) agrees not to commence or participate in, and agrees to take all actions necessary to opt out of any Underwriter class in any class action with respect to, any claim, derivative or dealer (the “Prospectus Delivery Period”)otherwise, against Parent, Acquisition Sub, the Company or any of their respective successors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the Contemplated Transactions; (d) agrees not to issue any press releases or otherwise make any public statements with respect to the transactions contemplated herein without the written approval of Parent (which will use its best efforts not be unreasonably conditioned, delayed or withheld), except as may be required by applicable Legal Requirements; and (e) agrees to comply with all requirements imposed upon it notify Parent promptly (and in any event within two business days) in writing of the number of any additional shares of Company Common Stock acquired by such Stockholder, if any, after the Securities Actdate 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 (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 each is defined in the Securities as contemplated by the provisions hereof, the General Disclosure Package and the Prospectus. If during such period Merger Agreement) from any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancePerson.
Appears in 2 contracts
Sources: Tender and Support Agreement (Maxim Integrated Products Inc), Tender and Support Agreement (Volterra Semiconductor Corp)
Covenants. The Company covenants and agrees with the several Underwriters each Underwriter as follows:
(a) If Immediately following the Initial Registration Statement has not already been declared effective by the Commissionexecution of this Agreement, the Company will use its best efforts (x) prepare the Final Prospectus that complies with the Securities Act and the Securities Act Regulations and which sets forth the aggregate face amount of the Class B Certificates and their terms not otherwise specified in the base prospectus relating to cause all offerings of pass through certificates under the Initial Registration Statement Statement, the name of each Underwriter participating in the offering and the aggregate face amount of the Class B 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 B Certificates are to be purchased by the Underwriters from the Trustee, any post-effective amendments thereto 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 become effective 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 Commission for filing pursuant to Rule 424 and will furnish to the Underwriters as promptly many copies of the Final Prospectus as possible; you shall reasonably request.
(b) 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 or the Securities Act Regulations, the Company will notify promptly advise you promptly of (i) the time when the Initial Registration Statement or effectiveness of any post-effective amendment to the Initial Registration Statement has become effective or Statement, (ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus has been filed and of or any document that would as a result thereof be incorporated by reference in the Final Prospectus, (iii) any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 Final Prospectus or Prospectus for any additional information relating thereto or to which you shall reasonably object any document incorporated by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
reference therein, (biv) 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, Statement or any post-effective amendment thereto the institution or preventing or suspending the use threatening of any Preliminary Prospectusproceeding for that purpose, and (v) the General Disclosure Package, receipt by the Prospectus or Company of any Issuer Free Writing Prospectus, of notification with respect to the suspension of the qualification of the Securities Class B Certificates for offering or sale in any jurisdiction, jurisdiction or of the initiation institution or threatening of any proceeding for any such purpose; and the . The Company will promptly use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain its as soon as possible the 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 Commissionthereof.
(c) (A) Within the If, at any time during which when a prospectus (assuming the absence of or in lieu thereof, a notice referred to in Rule 172173(a)) relating to the Securities Class B Certificates is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Act 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 General Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Final Prospectus (as then amended or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances then existingunder which they were made, not misleading, or if during such period it is shall 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 such amendment to the Registration Statement or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Class B Certificates). Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 4 hereof.
(d) 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 reasonably object.
(e) 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 if in lieu thereof, a notice referred to in Rule 173(a)) by the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with Underwriters may be required by the Securities Act, the Company will promptly notify you furnish as many copies of any Statutory Prospectus, the Final 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 ▇▇▇▇▇, except to the extent permitted by Regulation S-T or required under Rule 424(e).
(f) The Company shall use its reasonable efforts, in cooperation with the Underwriters, to qualify the Class B 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 amend 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 jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any such jurisdiction in which 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 cooperate with the Underwriters 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 each Underwriter, and each Underwriter represents and agrees that, unless it obtains 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 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 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) Between the date of this Agreement and the Closing Time, the Company will not, without the Representatives’ prior consent, offer, sell or enter into any agreement to sell any public debt securities registered under the Securities Act (other than the Class B Certificates and any Class A Certificates, if any) or any debt securities which may be 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 Class B 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 Class B Certificates, 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 Class B Certificates, 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 other action necessary or appropriate to permit the public offering and sale of the Class B Certificates to continue as contemplated in the expired registration statement relating to the Class B Certificates. References herein to the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to correct shall include such new automatic shelf registration statement or omission or effect such compliancenew shelf registration statement, as the case may be.
Appears in 2 contracts
Sources: Underwriting Agreement (American Airlines, Inc.), Underwriting Agreement (American Airlines, Inc.)
Covenants. (a) The Company covenants and agrees with the several Underwriters as followsand the Selling Stockholders that:
(ai) If the Initial The Registration Statement has not already and any amendments thereto have been declared effective by effective, and if Rule 430A is used or the Commissionfiling of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will use its best efforts file the Prospectus (properly completed if Rule 430A has been used) pursuant to cause Rule 424(b) within the Initial prescribed time period and will provide evidence satisfactory to Bear ▇▇▇▇▇▇▇ of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule 434, and the Prospectus shall not be “materially different” (as such term is used in Rule 434) from the Prospectus included in the Registration Statement at the time it became effective.
(ii) The Company will notify you immediately (and, if requested by Bear ▇▇▇▇▇▇▇, will confirm such notice in writing) (i) when 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 Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and effective, (ii) of any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement or the Prospectus and will not or for any additional information, (iii) of the Company’s intention to file or prepare any supplement, revision or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or Prospectus the Prospectus, including but not limited to which you shall reasonably object by notice to Rule 462(b) under the Company after having been furnished a copy a reasonable time prior to the filing.
Securities Act, (bv) 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, Statement or any post-effective amendment thereto or preventing of the initiation, or suspending the use threatening, of any Preliminary Prospectusproceedings therefor, it being understood that the General Disclosure PackageCompany shall make every effort to avoid the issuance of any such stop order, (vi) of the Prospectus or receipt of any Issuer Free Writing Prospectuscomments from the Commission, and (vii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, jurisdiction or of the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any such purpose; and time, the Company will promptly use its best efforts make every reasonable effort to prevent the issuance of any such stop order or and, if issued, to obtain its withdrawal the lifting of such order as soon as possible. The Company will not file, before or after the effective date of the Registration Statement, any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at the time of the effectiveness of the Registration Statement or file any document under the Exchange Act if such document would be deemed to be incorporated by reference into the Prospectus to which Bear ▇▇▇▇▇▇▇ shall reasonably object in writing after being timely furnished in advance a stop order should be issuedcopy thereof. AdditionallyThe Company will provide Bear ▇▇▇▇▇▇▇ with copies of all such amendments, the filings and other documents a sufficient time prior to any filing or other publication thereof to permit Bear ▇▇▇▇▇▇▇ a reasonable opportunity to review and comment thereon.
(iii) 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 the Exchange Act to confirm that permit completion of the distribution as contemplated in this Agreement, the Registration Statement and the Prospectus. If at 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) (A) Within the time during which when a prospectus (assuming the absence of Rule 172) relating to the Securities Shares is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), Exchange Act in connection with the Company will use its best efforts to comply 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 hereofShares, the General Disclosure Package and the Prospectus. If during such period any event occurs shall have occurred as a result of which the Prospectus (as then amended or if supplemented would, in the Prospectus is not yet available judgment of the Company or in the opinion of counsel to prospective purchasersthe Underwriters, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances then existingexisting at the time of delivery to the purchaser, 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 investors, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify you Exchange Act or the Rules and will Regulations it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement or to file any document incorporated by reference in the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasersor in any amendment thereof or supplement thereto, the General Disclosure PackageCompany will notify you promptly and prepare and file with the Commission, subject to Section 6(a) hereof, an appropriate amendment or supplement (at the expense of the Companyin form and substance satisfactory to Bear ▇▇▇▇▇▇▇) so as to which will correct such statement or omission or which will effect such compliancecompliance and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(iv) The Company will promptly deliver to each of you and your counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five years after the date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter for such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(v) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(vi) The Company will use its best efforts, in cooperation with Bear ▇▇▇▇▇▇▇, at or prior to the time of effectiveness of the Registration Statement, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions, domestic or foreign, as Bear ▇▇▇▇▇▇▇ may designate, including, without limitation, in Canada, and to maintain such qualification in effect for so long as required for the distribution thereof; 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 to service of process.
(vii) The Company will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not later than twelve months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(viii) During the period of 90 days from the date of the Prospectus, without the prior written consent of Bear ▇▇▇▇▇▇▇, the Company (i) will not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any announcement of any of the foregoing, (ii) will not establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Relevant Security, and (iii) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will obtain the undertaking of each of its officers and directors and the Selling Stockholders not to engage in any of the aforementioned transactions on their own behalf, other than the sale of Shares as contemplated by this Agreement and the Company’s issuance of shares of Common Stock upon the exercise of currently outstanding options and the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof, each as described in the Prospectus.
(ix) During the period of five years from the effective date of the Registration Statement, other than information which is publicly available on the Electronic Data Gathering, Analysis and Retrieval System, the Company will furnish to you copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to you (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission).
(x) The Company will use its best efforts to list the Shares, subject to notice of issuance, on the NYSE and maintain such listing of the Shares.
(xi) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby.
(xii) The Company will use its best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date or the Additional Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Firm Shares and the Additional Shares.
(b) Each Selling Stockholder agrees to deliver to Bear ▇▇▇▇▇▇▇ on or prior to the Closing Date a properly completed and executed United States Treasury Department Form W-8 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(c) The Company and the Selling Stockholders will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the sale of the Shares and on the execution and delivery of this Agreement. All payments to be made by the Company and the Selling Stockholders hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company or the Selling Stockholders are compelled by law to deduct or withhold such taxes, duties or charges. In that event, those parties shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
Appears in 2 contracts
Sources: Underwriting Agreement (Synnex Corp), Underwriting Agreement (Synnex Corp)
Covenants. The Company Each Grantor covenants and agrees with the several Underwriters as followsCollateral Agent and the Secured Parties that, from and after the date of this Agreement until the Obligations shall have been paid in full:
(a) If In the Initial Registration Statement has case of each Guarantor, such Guarantor shall take, or shall refrain from taking, as the case may be, each action that is necessary to be taken or not already been declared effective taken, as the case may be, so that no Default or Event of Default is caused by the Commission, the Company will use its best efforts failure to cause the Initial Registration Statement and any post-effective amendments thereto take such action or to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement refrain from taking such action by such Guarantor or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingits Subsidiaries.
(b) The Company will advise you, promptly after it shall receive notice If any amount payable under or obtain knowledge thereof, in connection with any of the issuance Collateral shall be or become evidenced by any Instrument, Certificated Security or Chattel Paper, such Instrument, Certificated Security or Chattel Paper shall be promptly delivered to the Commission of any stop order suspending the effectiveness of the Registration StatementCollateral Agent, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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) 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 duly indorsed in a timely manner satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement; provided, that the Grantors shall not be obligated to deliver to the Collateral Agent any Instruments or Chattel Paper held by any Grantor at any time to the Commissionextent that the aggregate face amount of all such Instruments and Chattel Paper held by all Grantors at such time does not exceed $250,000.
(c) Such Grantor will maintain, with financially sound and reputable companies, insurance policies in accordance with the requirements of Section 5.02 of the Credit Agreement.
(d) Such Grantor will pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all material taxes, assessments and governmental charges or levies imposed upon the Collateral in accordance with Section 5.03 of the Credit Agreement or in respect of income or profits therefrom, as well as all material claims of any kind (including, without limitation, claims for labor, materials and supplies) against or with respect to the Collateral, except that no such charge need be paid if the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Grantor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any interest therein.
(i) Such Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 4.02 and shall defend such security interest against the claims and demands of all Persons whomsoever in accordance with Section 4.03(l).
(ii) At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Collateral Agent may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, (A) Within the time during filing of any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby and (B) in the case of Investment Property, Deposit Accounts and Letter-of-Credit Rights, taking any actions necessary to enable the Collateral Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto.
(f) Each Grantor will not, except upon prior notice to the Collateral Agent and delivery to the Collateral Agent of any additional documents reasonably requested by the Collateral Agent that are necessary to maintain the validity, perfection and priority of the security interests provided for herein, effect any change (i) in name, (ii) in its identity or type of organization or corporate structure, (iii) in its Federal Taxpayer Identification Number or organizational identification number or (iv) in its jurisdiction of organization. Each Grantor agrees to promptly provide the Collateral Agent with certified organizational documents reflecting any of the changes described in the first sentence of this paragraph. Each Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest (with the same priority as immediately before such change) in all the Article 9 Collateral.
(g) [RESERVED]
(i) If such Grantor shall become entitled to receive or shall receive any certificate (including, without limitation, any certificate representing a dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of the Equity Interests of any issuer thereof (each, an “Issuer”), whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Collateral Agent and the Secured Parties, hold the same in trust for the Collateral Agent and the Secured Parties and deliver the same forthwith to the Collateral Agent in the exact form received, duly indorsed by such Grantor to the Collateral Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor and with, if the Collateral Agent so requests, signature guaranteed, to be held by the Collateral Agent, subject to the terms hereof, as additional collateral security for the Obligations. Any sums paid upon or in respect of the Investment Property upon the liquidation or dissolution of any Issuer shall be paid over to the Collateral Agent to be held by it hereunder as additional collateral security for the Obligations, and in case any distribution of capital shall be made on or in respect of the Investment Property, or any property shall be distributed upon or with respect to the Investment Property pursuant to the recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless otherwise subject to a perfected security interest in favor of the Collateral Agent, be delivered to the Collateral Agent to be held by it hereunder as additional collateral security for the Obligations. If any sums of money or property so paid or distributed in respect of the Investment Property shall be received by such Grantor, such Grantor shall, until such money or property is paid or delivered to the Collateral Agent, hold such money or property in trust for the Secured Parties, segregated from other funds of such Grantor, as additional collateral security for the Obligations. Notwithstanding the foregoing, the Grantors shall not be required to pay over to the Collateral Agent or deliver to the Collateral Agent as Collateral any proceeds of any liquidation or dissolution of any Issuer, or any distribution of capital or property in respect of any Investment Property, to the extent that (A) such liquidation, dissolution or distribution would be permitted by the Credit Agreement and (B) the proceeds thereof are applied toward prepayment of Loans to the extent required by the Credit Agreement.
(ii) Without the prior written consent of the Collateral Agent, such Grantor will not (A) vote to enable, or take any other action to permit, any Issuer to issue any stock or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock or other equity securities of any nature of any Issuer, unless such securities are delivered to the Collateral Agent, concurrently with the issuance thereof, to be held by the Collateral Agent as Collateral, (B) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Investment Property or Proceeds thereof (except pursuant to a transaction expressly permitted by the Credit Agreement), (C) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Investment Property or Proceeds thereof, or any interest therein, except for the security interests created by this Agreement or (D) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Collateral Agent to sell, assign or transfer any of the Pledged Securities or Proceeds thereof, in each case except to the extent permitted under the Credit Agreement.
(iii) In the case of each Grantor which a prospectus is an Issuer, such Issuer agrees that (assuming A) it will be bound by the absence terms of Rule 172) this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it, (B) it will notify the Collateral Agent promptly in writing of the occurrence of any of the events described in Section 5.8(a) with respect to the Pledged Securities issued by it and (C) the terms of Section 5.07 shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 5.07 with respect to the Pledged Securities issued by it.
(iv) Each Issuer that is required to be delivered under a Grantor and is a partnership or a limited liability company (i) confirms that none of the Securities Act terms of any equity interest issued by any Underwriter or dealer it provides that such equity interest is a “security” within the meaning of Sections 8-102 and 8-103 of the New York UCC (the a “Prospectus Delivery PeriodSecurity”), (ii) agrees that it will take no action to cause or permit any such equity interest to become a Security, (iii) agrees that it will not issue any certificate representing any such equity interest and (iv) agrees that if, notwithstanding the Company foregoing, any such equity interest shall be or become a Security, such Issuer will (and the Grantor that holds such equity interest hereby instructs such Issuer to) comply with instructions originated by the Collateral Agent without further consent by such Grantor.
(i) None of the Grantors will, without the Collateral Agent’s prior written consent not to be unreasonably withheld, grant any extension of the time of payment of any Accounts included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than extensions, compromises, settlements, releases, credits or discounts that would not reasonably be expected to have a Material Adverse Effect.
(j) Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate records with respect to the Article 9 Collateral owned by it as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged.
(k) Upon the request of the Collateral Agent (not to be made more frequently than once per fiscal year so long as no Event of Default has occurred and is continuing), the Borrower shall deliver to the Collateral Agent an updated Perfection Certificate certified by a Financial Officer of the Borrower reflecting all changes since the date of the Perfection Certificate delivered on the Closing Date or the date of the most recent Perfection Certificate delivered pursuant to this paragraph.
(l) Subject to the rights of such Grantor under the Credit Agreement to dispose of Collateral, each Grantor shall, at its own expense, use its best commercially reasonable efforts to comply with defend title to material portions of the Article 9 Collateral against all requirements imposed upon it by Persons and to defend the Securities ActSecurity Interest of the Collateral Agent in material portions of the Article 9 Collateral and the priority thereof against any Lien not expressly permitted pursuant to Section 6.02 of the Credit Agreement.
(m) Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as now and hereafter amended, and by the Rules and Regulations, as Collateral Agent may from time to time reasonably request to preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any fees and taxes required in forceconnection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith, in each case necessary for such preservation, protection and perfection. Without limiting the generality of the foregoing, each Grantor may supplement this Agreement by supplementing Schedule III or adding additional schedules hereto to specifically identify any asset or item that may constitute registered Copyrights, Patents or registered Trademarks, or applications for the foregoing, and which is material to the conduct of the Grantor’s business; provided that any Grantor shall have the right, exercisable within 30 days after it has been notified by the Collateral Agent of the specific identification of such Collateral, to advise the Collateral Agent in writing of any inaccuracy of the representations and warranties made by such Grantor hereunder with respect to such Collateral. Each Grantor agrees that it will use commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Collateral within 30 days after the date it has been notified by the Collateral Agent of the specific identification of such Collateral.
(n) [RESERVED]
(o) At its option and following not less than 30 days’ prior written notice to the Borrower, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Article 9 Collateral and not permitted pursuant to Section 6.02 of the Credit Agreement unless properly contested in good faith pursuant to Section 5.03 of the Credit Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Grantor fails to do so far as necessary required by the Credit Agreement or this Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent on demand for any reasonable payment made or any reasonable expense incurred by the Collateral Agent pursuant to the foregoing authorization; provided that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents.
(p) Each Grantor shall remain liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article 9 Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against any and all liability for such performance.
(q) None of the Grantors shall make or permit to be made an assignment, pledge or hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9 Collateral, except as permitted by the Credit Agreement. None of the Grantors shall make or permit to be made any transfer of the Article 9 Collateral and each Grantor shall remain at all times in possession of the Article 9 Collateral owned by it, except that unless and until the Collateral Agent shall notify the Grantors that an Event of Default shall have occurred and be continuing and that during the continuance thereof the Grantors shall not sell, convey, lease, assign, transfer or otherwise dispose of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package and the Prospectus. If during such period any event occurs as a result of Article 9 Collateral (which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.notice may be
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Hawaiian Telcom Holdco, Inc.), Credit Agreement (Hawaiian Telcom Holdco, Inc.)
Covenants. The Company (1) Party B hereby covenants to Party A that he will bear all costs and agrees 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 several Underwriters Company, including, without limitation, assisting Party A in obtaining requisite approvals of competent 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 followsof the execution date hereof and each transfer date:
(a) If Party B has the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts power and ability to cause the Initial Registration Statement execute and deliver this Agreement and any post-effective amendments thereto equity transfer agreement to become effective as promptly as possible; the Company will notify you promptly which he is a party and which is executed with respect to each transfer of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 containing the information omitted therefrom acquired equity interests pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required bythis Agreement (each “Transfer Agreement”), and otherwise to perform his obligations hereunder and 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.their terms;
(b) The Company will advise you, promptly after it shall receive notice Neither his execution and delivery of this Agreement or obtain knowledge thereof, any Transfer Agreement nor his performance of the issuance by the Commission obligations hereunder or thereunder will: (i) constitute a violation of any stop order suspending applicable PRC laws; (ii) contravene the effectiveness articles of the Registration Statementassociation 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, or any post-effective amendment thereto or preventing or suspending the use constitute a default thereunder; (iv) constitute a breach of any Preliminary Prospectus, condition with respect to the General 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 grant and (or) survival of any proceeding for permit or approval issued to him; or (v) result in suspension or revocation or attaching any such purpose; and the Company will promptly use its best efforts condition to prevent the issuance of any stop order permit or approval issued 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.him;
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating Party B has good and marketable title to the Securities is required to be delivered equity interests held by him in the Company, on which Party B has not created any encumbrance, except created under the Securities Act Share Pledge Agreement;
(d) 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 and consented in writing by any Underwriter or dealer Party A;
(the “Prospectus Delivery Period”), the e) The Company will use its best efforts to comply with all requirements imposed upon it by laws and regulations applicable to the Securities Actacquisition of assets; and
(f) There is no ongoing, as now and hereafter amendedpending or threatened litigation, and by the Rules and Regulations, as from time arbitration or administrative proceeding with respect 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement its equity interests or omission or effect such complianceassets.
Appears in 2 contracts
Sources: Option Purchase Agreement (AiHuiShou International Co. Ltd.), Option Purchase Agreement (AiHuiShou International Co. Ltd.)
Covenants. The Company covenants and agrees with the several Underwriters as followsthat it will:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use Use its best efforts to cause the Initial Registration Statement to become effective and will notify the Agent immediately, and confirm the notice in writing, (i) when the Registration Statement and any post-effective amendments amendment thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become becomes effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b(ii) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 any Preliminary Prospectus, the General 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 initiation, or threatening the threatening, of any proceeding proceedings for that purpose and (iii) of the receipt of any such purpose; and comments from the Commission. The Company will promptly use its best efforts make every reasonable effort to prevent the issuance of any a stop order or to obtain its withdrawal order, and, if such the Commission shall enter a stop order should be issued. Additionallyat any time, the Company agrees that it shall comply with will make every reasonable effort to obtain the provisions lifting of Rules 424(b) and 430A, as applicable, under such order at 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 Commissionearliest possible moment.
(cb) (A) Within During the time during which when a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to comply so 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 RegulationsRules, 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 General Disclosure Package and the ProspectusShares. If during such period at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act any event occurs shall have occurred as a result of which which, in the Prospectus (reasonable opinion of counsel for the Company or if counsel for the Prospectus is not yet available to prospective purchasersAgent, the General Disclosure Package) would include Registration Statement or Prospectus as then amended or supplemented includes an untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances then existingunder which they were made, not misleading, or if during such period it is necessary at any time to amend or supplement the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities ActAct or the Rules, the Company will notify the Agent promptly notify you 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 be paid by the Company.
(c) 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 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 amend 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 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 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 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 supplement 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; (orv) 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 Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense sale and delivery of the Shares by the Company to the Agent, (viii) the inclusion of the Shares for listing on the OTC Bulletin Board; and (ix) the Agent's out-of-pocket expenses, including without limitation, road show expenses and legal fees of counsel to the Agent.
(m) Not, without the prior written consent of the Agent, sell, contract to sell or grant any option for the sale of or otherwise dispose of, directly or indirectly, or register with the Commission, any shares of Common Stock of the Company (or any securities convertible into or exercisable for 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) so as 's shareholders direct the Company to correct such statement or omission or effect such compliancederegister the Common Stock.
Appears in 2 contracts
Sources: Agency Agreement (First Shares Bancorp Inc), Agency Agreement (First Shares Bancorp Inc)
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the The Company will notify you promptly of the time when the Initial Original Registration Statement or any post-effective amendment to the Initial Original 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 Initial Original 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. 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.
(bii) 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 any Preliminary Prospectus, the General 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) and 430A, as applicable, under of the Securities Act Rules and Regulations and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 of the Rules and Regulations were received in a timely manner by the Commission.
(ciii) (A) Within the time during which a prospectus (assuming the absence of Rule 172172 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)dealer, the Company will use its best efforts to 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, the General 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 General 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 investors, the General Time of Sale Disclosure Package) to comply with the Securities 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 General Time of Sale Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Purchase Agreement (Fortegra Financial Corp), Purchase Agreement (Fortegra Financial Corp)
Covenants. The Company covenants and agrees with the several Underwriters For so long as followsthis Note remains outstanding or any amount remains unpaid on this Note:
(a) If OneBeacon shall use commercially reasonable efforts to obtain the Initial Registration Statement approval of the Commissioner in accordance with Section 322.2 of the Insurance Law for the payment by OneBeacon of interest on and principal of this Note on the scheduled payment dates, prepayment date or maturity dates thereof, and, in the event any such approval has not already been declared effective by obtained for any such payment or prepayment at or prior to the Commissionscheduled payment date, prepayment date or maturity date, as the Company will case may be, to continue to use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as obtain such approval promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 thereafter. Not less than 45 days prior to the filingscheduled 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 thereafter, if such payment or prepayment has been approved by the Commissioner, shall promptly notify in writing the holder of this Note of such approval.
(b) The Company will advise youUntil the full principal amount of this Note and any interest incurred thereon has been paid to the holder hereof, promptly after it OneBeacon shall receive notice or obtain knowledge thereofnot, without the prior written consent of the issuance 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 Commission 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 endorser, guarantor, surety or otherwise, for any debt or obligation of any stop order suspending the effectiveness other person;
(iii) cease operations, liquidate, merge, transfer, acquire or consolidate with any entity, or dissolve or transfer or sell assets outside of the Registration Statementordinary course of business;
(iv) 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 post-effective amendment thereto new business (including through any reinsurance or preventing or suspending under existing treaties) other than pursuant to the use fronting requirements set forth in Section 5.23 of any Preliminary Prospectusthat certain Stock Purchase Agreement between OneBeacon Insurance Group LLC, the General Disclosure PackageTrebuchet US Holdings, 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; Inc. 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. Additionallyother parties thereto, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430Adated October 17, 2012, 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) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as amended 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancetime.
Appears in 2 contracts
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD), Stock Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment Prior to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and termination of any request by the Commission for any amendment or supplement to the Initial 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 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 this Agreement in accordance with Section 8 below (the provisions of“Termination Date”), Rules 424(bthe Holder will not, and will cause its affiliates not to, withdraw or revoke any tender contemplated by this Agreement unless (i) and 430A one or more of the Rules conditions set forth in Section 2 hereof is not satisfied, (ii) the Exchange 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement Tender Offer is terminated before its expiration or modified in a way inconsistent with the Commission within Term Sheet that will materially adversely affect the time period required byHolder without the Holder’s prior written consent, and otherwise such consent not to be unreasonably withheld, conditioned or delayed, or (iii) this Agreement is terminated in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingits terms.
(b) The Company Prior to the Termination Date and subject to the terms and conditions of this Agreement, the Holder agrees not to, and will advise youcause its affiliates not to, promptly after it shall receive notice take, or obtain knowledge thereofcause to be taken, of directly or indirectly, any action inconsistent with the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statementconsummation of, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectusaction opposing, the General 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; Exchange 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 CommissionTender Offer.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating Prior to the Securities Termination Date, the Holder agrees that, without the Company’s prior written consent, it 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, grant an option with respect to, transfer or otherwise dispose of any of the Holder’s Notes, in whole or in part, unless the transferee of such Notes agrees to be bound by the terms of 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 be delivered under do so by the Securities Act and Exchange Commission, the Nasdaq National Market or The Financial Industry Regulatory Authority, but shall request confidential treatment and (ii) the Company may disclose the aggregate percentage or aggregate principal amount of Notes held by any Underwriter Holders who have signed support agreements with the Company agreeing to exchange or dealer tender their Notes in the Exchange and Tender Offer (without naming such Holders).
(e) The Company agrees to commence the Exchange and Tender Offer and the Rights Offering as soon as practicable and to provide the Holder with a draft Indenture (the “Prospectus Delivery PeriodIndenture”) 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 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 the Exchange and Tender Offer (or the termination hereof), the Holder agrees to treat as confidential any information in such drafts which is not public information.
(f) The Company will use its best efforts agrees to comply with all requirements imposed upon it allow the Holder to withdraw such Holder’s tender in the Exchange and Tender Offer (if such Holder so chooses) if the Company changes any term or condition from those in the Term Sheet or in the Exchange and Tender Offer or Rights Offering reviewed by the Securities ActHolder that materially adversely affects the Holder without the Holder’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancemore fully set forth herein.
Appears in 2 contracts
Sources: Support Agreement (Hutchinson Technology Inc), Support Agreement (Hutchinson Technology Inc)
Covenants. The Company covenants and agrees with the several Underwriters as follows:: ---------
(a) If The Company will promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments, and governmental charges or levies imposed upon the Initial Registration Statement has income, profits, property, or business of the Company or any Subsidiary; provided, however, that any such tax, assessment, charge, or levy need not already been declared effective be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the CommissionCompany shall have set aside on its books adequate reserves with respect thereof, and provided further, that the Company will use its best efforts pay all such taxes, assessments, charges, or levies forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor. The Company will promptly pay or cause to be paid when due, or in conformance with customary trade terms, all other indebtedness incident to the Initial Registration Statement operations of the Company and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.Subsidiary;
(b) The Company will advise youkeep its properties and those of its Subsidiaries in good repair, promptly after it shall receive notice or obtain knowledge thereofworking order, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statementand condition, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectusreasonable wear and tear excepted, the General Disclosure Packageand from time to time make all necessary and proper repairs, the Prospectus or any Issuer Free Writing Prospectusrenewals, of the suspension of the qualification of the Securities for offering or sale in any jurisdictionreplacements, or of the initiation or threatening of any proceeding for any such purposeadditions, and improvements thereto; and the Company and its Subsidiaries 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 at all times comply with the provisions of Rules 424(b) and 430Aall material leases to which any of them is a party or under which any of them occupies property so as to prevent any material adverse effect to the business, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by assets or property of the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission.and its Subsidiaries;
(c) The Company will keep true records and books of account in which full, true, and correct entries will be made of all dealings or transactions in relation to its business and affairs in accordance with generally accepted accounting principles applied on a consistent basis;
(Ad) Within the time during The Company and all its Subsidiaries shall duly observe and conform to all valid requirements of governmental authorities which a prospectus (assuming the absence of Rule 172) relating are material to the Securities is required conduct of their businesses or to their property or assets; and
(e) The Company shall maintain in full force and effect its corporate existence, rights, and franchises and all material licenses and other material rights to use processes, licenses, trademarks, trade names, or copyrights owned or possessed by it or any subsidiary and deemed by the Company to be delivered under necessary to the Securities Act conduct of its business.
(f) The Company shall not close an initial public offering of shares of Common Stock unless and until the registration statement covering such shares contains financial statements for the Company's fiscal year ended December 31, 1998 that are audited and certified by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it independent public accountants approved 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 Board of sales of or dealings in the Securities as contemplated by the provisions hereof, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense Directors of the Company) so as , and such accountants shall have delivered an unqualified opinion with respect to correct such statement or omission or effect such compliancefinancial statements.
Appears in 2 contracts
Sources: Investor Rights Agreement (Intellisys Group Inc), Series a Convertible Redeemable Preferred Stock Purchase Agreement (Intellisys Group Inc)
Covenants. The Company Maker covenants and agrees with that, so long as any amount is due and owing under the several Underwriters as followsNote, it shall not:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts Fail to cause the Initial Registration Statement and make any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly payment of the time principal of interest on, or other obligations in respect of, this Note, free of any claim of subordination, as and when the Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has same shall become effective or any supplement to the Prospectus has been filed due and of any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based payable (whether on the advice of counselMaturity Date or by acceleration or otherwise), may for ten (10) days after the same shall be necessary or advisable in connection with the distribution of the Securities by the Underwriters; due and the Company will furnish the Representatives 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.payable;
(b) The Company will advise youFail to observe or perform any other covenant, promptly after it shall receive notice agreement or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statementwarranty contained in, or otherwise commit, any post-effective amendment thereto or preventing or suspending the use breach of any Preliminary Prospectus, the General 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) 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.this Note;
(c) Suffer to have the guarantor (Athe "Guarantor") Within under the time during guarantee (the "Guarantee") or the pledgor (the "Pledgor") under the stock pledge agreement (the "Stock Pledge Agreement") entered into contemporaneously herewith and of even date herewith fail to observe or perform any covenant, agreement or warranty contained therein, or otherwise commit any breach thereof (this Note, the Guaranty, the Stock Pledge Agreement and all other documents delivered contemporaneously and in connection herewith collectively are referred to as the "Loan Documents");
(d) Commence or suffer to 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 have an involuntary case commenced against it, the 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 prospectus "custodian" (assuming as defined in the absence Bankruptcy Code) appointed for, or take charge of, all or any substantial part of Rule 172) 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 effect relating to the Securities 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 required 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) Default, or suffer to have the Guarantor or the Pledgor default, in 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 date on which it would otherwise become due and payable;
(f) Be, or suffer to have the Guarantor or the Pledgor be, a party to any Change of Control Transaction (as defined below), or sell or dispose of all or in excess of forty-nine (49%) percent of its respective assets (based on book value calculation as reflected in the its most recent financial statements) in one or more transactions (whether or not such sale would constitute a Change of Control Transaction);
(g) Suffer to have the Common Stock to be delivered 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 Exchange Commission or Financial Industry Regulatory Authority, or any applicable 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 Securities Act by any Underwriter or dealer Notes pursuant to the Stock Pledge Agreement (the “Prospectus Delivery Period”)"Collateral Shares") be equal to not more than four (4) times the Maturity Amount on any trading day during the term of this Note; provided, that for purposes of measuring compliance with this covenant, the Company will use its best efforts value of the Collateral Shares shall be deemed to comply with all requirements imposed upon it by be the Securities Actaverage of the Volume-Weighted Average Price (the "VWAP") of Common Stock, as now and hereafter amendedreported by B▇▇▇▇▇▇▇▇, and by L.P., for the Rules and Regulationsprevious five (5) trading days;
(l) Suffer to have an action, as from time to time in force, so far as necessary to permit the continuance of sales of suit or dealings in the Securities as contemplated by the provisions hereofproceeding commenced against it, the General Disclosure Package and Guarantor or the Prospectus. If during such period Pledgor seeking damages in an amount exceeding thirty-seven thousand five hundred dollars ($37,500); or
(m) Make any event occurs as a result of which the Prospectus (representation or if the Prospectus warranty that is not yet available to prospective purchaserstrue and correct in all material respects as of the date of this Note, the General Disclosure Package) would include an untrue statement except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material fact or omit to state a material fact necessary to make the statements therein, in the light respects as 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancedate.
Appears in 2 contracts
Sources: Promissory Note (Decor Products International, Inc.), Note Agreement (Murals by Maurice, Inc.)
Covenants. The Company a. These covenants shall run with the land, and all future conveyances of 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 agrees with the several Underwriters as follows:
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) If the Initial Registration Statement has not already been declared effective by the CommissionDeveloper as long as the Developer owns any lot for resale in the subdivision; (b) 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 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 Company will use its best efforts to cause non-performing party or the Initial Registration Statement and party violating any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when conditions, covenants and restrictions shall reimburse the Initial Registration Statement or Developer and/or individual Owners for all out-of-pocket expenses (including actual attorneys' fees and court costs) incurred in successfully enforcing these conditions, covenants, and restrictions.
e. Variations in any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request these covenants may be permitted by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules Developer where he is reasonably satisfied that such variations will be pleasing and Regulations, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations generally in keeping with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A character 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement or Prospectus surrounding properties and will not file any amendment or supplement be a detriment to the Registration Statement or Prospectus to which you shall reasonably object by notice to subdivision as a whole. After 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 Developer no longer owns 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 General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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 lot in the Securities subdivision, requests for variations may be submitted to such review committee(s) as contemplated by may be convened from among the provisions hereof, property owners within the General Disclosure Package subdivision for consideration and the Prospectus. If during such period any event occurs as a result of which the Prospectus (approval or if the Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancerejection.
Appears in 2 contracts
Sources: Restrictive Covenants, Restrictive Covenants
Covenants. The Company covenants and agrees with to the several Underwriters Lenders as follows:
(a) If The Company shall promptly notify the Initial Registration Statement Lenders’ Agent in writing in the event that a material adverse change has not already been declared effective by occurred with respect to the Commissionassets, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly business, operations or financial condition of the time when Company, or that the Initial Registration Statement prospect of payment or performance of any covenant, agreement or duty under the Loan Documents or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments other agreements or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable undertakings in connection with the distribution any of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement its obligations to the Registration Statement or Prospectus and will not file Lenders is impaired in 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 filingmaterial respect.
(b) The Company will advise youshall promptly notify the Lenders’ Agent in writing in the event of a loss, promptly suspension, revocation or failure to renew any license or permit now held or acquired after it the date hereof shall receive notice occur, which loss, suspension, revocation or obtain knowledge thereoffailure to renew would reasonably be expected to have a material adverse affect on the business, profits, assets or condition (financial or otherwise) 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 General 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) 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 CommissionCompany.
(c) (A) Within The Company shall promptly notify the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), Lenders’ Agent in writing if the Company will use its best efforts to comply with all requirements imposed upon it by is in breach of any material agreement, document or instrument, whether formerly, now or after 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 date hereof, existing between the General Disclosure Package Company and the Prospectus. If during any other person, firm or entity, if such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available breach would reasonably be expected to prospective purchasers, the General Disclosure Package) would include an untrue statement of have a material fact adverse affect on the business, profits, assets or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, condition (financial 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 investors, the General Disclosure Packageotherwise) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company.
(d) The Company shall not make any prepayment of any Note or agree to the amendment of any such Note, and no Lender shall accept any prepayment of its Note, or agree to any amendment of such Note, unless a proportionate prepayment is made to all of the 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 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 Closing Date and described in Schedule C to this Agreement;
(ii) Liens arising from taxes, assessments, charges, levies or claims that are not 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 performance of bids, tenders, trade contracts or 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 of any other 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 correct the end of such statement or omission or effect month setting forth in comparative form the Company’s financial statements for the corresponding periods for the prior fiscal year, all in reasonable detail and certified by an authorized financial officer of the Company stating that such compliancestatements are in accordance with the books and records of the 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 Company at the date thereof and for the periods covered thereby, subject to changes resulting from year end adjustments and accruals; and
(ii) At least 30 days prior to the end of each fiscal year, an annual budget for the next fiscal year.
(i) The Company shall permit each Lender and any authorized representative thereof, at such Lender’s expense, to visit and inspect the properties of the Company, including its corporate and financial records, to examine its records and make copies thereof and to discuss its affairs, finances and accounts with its officers, all at such reasonable times and upon reasonable notice. The Lenders and their representatives shall treat all 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 purpose other than to monitor the Company’s performance hereunder and shall not disclose same except as required by court order.
Appears in 2 contracts
Sources: Loan Agreement (Lightning Gaming, Inc.), Loan Agreement (Lightning Gaming, Inc.)
Covenants. The Company hereby covenants and agrees with the several Underwriters Buyer as follows:
(a) If the Initial Company elects to rely upon Rule 462(b), the Company shall file a Rule 462 Registration Statement has not already been declared effective 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 the Company shall at the time of filing either pay to the Commission the filing fee for Rule 462 Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111 under the Securities Act.
(b) The Company shall promptly advise the Buyer in writing (A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly (B) of the time when the Initial Registration Statement or and date of any filing of any post-effective amendment to the Initial 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 Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and RegulationsProspectus, 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(C) of the Rules time and Regulations to increase the size of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, date that any amendments or supplements post-effective amendment to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; becomes effective and the Company will furnish the Representatives 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.
(bD) 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, Statement or of any post-effective amendment thereto or order preventing or suspending its use or the use of any Preliminary the Final Prospectus, the General Disclosure Packageor of any proceedings to remove, the Prospectus suspend or any Issuer Free Writing Prospectus, terminate from listing or quotation of the suspension of the qualification of the Securities Shares from any securities exchange upon which it is listed for offering trading or sale in any jurisdictionincluded or designated for quotation, or of the threatening or initiation or threatening of any proceeding proceedings for any of such purpose; and purposes. If the Commission shall enter any such stop order, the Company will promptly shall use its best efforts to prevent obtain the issuance lifting of any stop such order or to obtain its withdrawal if such a stop order should be issuedat the earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) ), 430A and 430A430B, 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), ) or Rule 433 or Rule 462 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or 164(b) of the Securities Act).
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the The Company will use its best efforts to comply 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, as now and hereafter amended, so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package Registration Statement and the Prospectus. If during such period any event occurs as a result of which .
(d) The Company, whether or not the Prospectus transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause to be paid (or if A) all expenses (including transfer taxes allocated to the Prospectus is not yet available respective transferees) incurred in connection with the delivery to prospective purchasersthe Buyer, the General Disclosure Package(B) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinall expenses and fees (including, in the light without limitation, fees and expenses of the circumstances then existingCompany’s counsel) in connection with the preparation, not misleadingprinting, or if during such period it is necessary to amend filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Shares, the Prospectus, and any amendment thereof or supplement thereto, (C) the Prospectus fees and expenses of any transfer agent or registrar, (or D) listing fees, if any, and (E) all other costs and expenses incident to the Prospectus is performance of its obligations hereunder that are not yet available otherwise specifically provided for herein.
(e) The Company intends to prospective investors, apply the General Disclosure Package) net proceeds from the sale of the Warrants to comply with be sold by it hereunder for the Securities Act, the Company will promptly notify you and will amend purposes set forth in the Registration Statement or supplement and the Prospectus Final Prospectus.
(or, if f) The Company shall use its best efforts to effect and maintain the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense listing of the CompanyShares on NASDAQ and to file with NASDAQ all documents and notices required by NASDAQ of companies that are traded on NASDAQ and quotations for which are reported by NASDAQ.
(g) so The Company will not be or become, within one year of the time of purchase, an “investment company” as to correct such statement or omission or effect such compliance.defined in the Investment Company Act
Appears in 2 contracts
Sources: Securities Purchase Agreement (OVERSTOCK.COM, Inc), Securities Purchase Agreement (OVERSTOCK.COM, Inc)
Covenants. The Company covenants and agrees with the several Underwriters as followseach Underwriter that:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the The Company will shall use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; or, if the Company will procedure in Rule 430A of the Rules and 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 the time when the Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and all such filings. The Company shall notify you promptly of any request by the Commission for any amendment of or supplement to the Initial Registration Statement or the Effective Prospectus or the Final Prospectus or for 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will shall prepare and file with the Commission, promptly upon your request, any amendments of or supplements to the Registration Statement or the Effective Prospectus or the Final Prospectus that, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the UnderwritersShares; and the Company will furnish the Representatives and counsel for the Underwriters a copy shall not file any amendment of any proposed amendment or supplement to the Registration Statement or the Effective Prospectus and will or the Final Prospectus that is not file any amendment approved by you after reasonable notice thereof, such approval not to be unreasonably withheld 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) delayed. The Company will shall advise you, you promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto suspending or preventing or suspending the use of any Preliminary Prospectus, the General Disclosure Package, the Pre-Effective Prospectus or any Issuer Free Writing Prospectus, of the suspension of Effective Prospectus or Final Prospectus or suspending the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening institution of any proceeding proceedings for any such purpose; and the Company will promptly shall use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if other such order and, should a stop order should or other such order be issued. Additionally, to obtain as soon as possible the lifting thereof.
(b) The Company agrees that it shall comply with furnish to the provisions Underwriters, from time to time and without charge, a reasonable number of Rules 424(b) copies of the Registration Statement of which one for the Representative and 430A, as applicable, under one for counsel to the Securities Act Underwriters shall be signed and will use its reasonable efforts shall include exhibits and all amendments and supplements 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 Commissionsuch Registration Statement.
(c) (A) Within The Company will furnish the time Underwriters with as many copies of any Pre-Effective Prospectus as the Representative may reasonably request, and, during which the period when delivery of a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to comply furnish the Underwriters with all requirements imposed upon it by as many copies of the Securities ActFinal Prospectus as the Representative may, as now and hereafter amended, and by the Rules and Regulations, as from time to time in forcetime, so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Disclosure Package and the Prospectusreasonably request. If during such period any event occurs as a result of which the Final Prospectus (as then amended or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or or, if during such period it is necessary to amend the Registration Statement or supplement the Final Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities Act, the Company will shall promptly notify you and will shall amend the Registration Statement or supplement the Final Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (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 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 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 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 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 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 Underwriters in connection with the investigation, 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 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 sale 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 event be liable to any of the 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.
(i) The Company, at its expense, will furnish to its shareholders an annual report (including financial statements prepared in accordance with generally accepted accounting principles audited by independent certified public accountants), and, as soon as practicable after the end 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, and, during the five-year period after the date hereof, at its expense, will furnish you, with copies for each of the several Underwriters, (i) as soon as practicable after the end of each fiscal year, a balance sheet of the Company and any subsidiaries as at the end of such 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) as soon as they are available, a copy of all reports (financial or other) mailed to security holders; (iii) as soon as they are available, a copy of all periodic reports and financial statements furnished to or 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 the several Underwriters, every material press release and every material news item or article in respect of the Company or its affairs that is released or prepared by the Company.
(j) If and so long as the Company has any subsidiaries, the 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 Rules and Regulations.
(k) At or before the First Closing Date, you shall receive from each of the Company's current officers and directors, certain warrant holders of the 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 case 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 date of the Final Prospectus, without first (i) obtaining your prior written consent and (ii) granting you the right, if you so elect, to act as the sole broker/dealer with respect to any such offer, sale, transfer or other disposition of such securities pursuant to Rule 144 of the 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 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 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 the 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. The Company covenants and agrees with the several Underwriters For so long as followsthis Note remains outstanding or any amount remains unpaid on this Note:
(a) If OneBeacon shall use commercially reasonable efforts to obtain the Initial Registration Statement approval of the Commissioner in accordance with Section 322.2 of the Insurance Law for the payment by OneBeacon of interest on and principal of this Note on the scheduled payment dates, prepayment date or maturity dates thereof, and, in the event any such approval has not already been declared effective by obtained for any such payment or prepayment at or prior to the Commissionscheduled payment date, prepayment date or maturity date, as the Company will case may be, to continue to use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as obtain such approval promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 thereafter. Not less than 45 days prior to the filingscheduled 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 thereafter, if such payment or prepayment has been approved by the Commissioner, shall promptly notify in writing the holder of this Note of such approval.
(b) The Company will advise youUntil the full principal amount of this Note and any interest incurred thereon has been paid to the holder hereof, promptly after it OneBeacon shall receive notice or obtain knowledge thereofnot, without the prior written consent of the issuance by the Commission 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 endorser, guarantor, surety or otherwise, for any debt or obligation of any stop order suspending the effectiveness other person;
(iii) cease operations, liquidate, merge, transfer, acquire or consolidate with any entity, or dissolve or transfer or sell assets outside of the Registration Statementordinary course of business;
(iv) 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 post-effective amendment thereto new business (including through any reinsurance or preventing or suspending under existing treaties) other than pursuant to the use fronting requirements set forth in Section 5.23 of any Preliminary Prospectusthat certain Stock Purchase Agreement between OneBeacon Insurance Group LLC, the General Disclosure PackageTrebuchet US Holdings, 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; Inc. 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. Additionallyother parties thereto, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430Adated October 17, 2012, 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) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as amended 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancetime.
Appears in 2 contracts
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD), Stock Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (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.
(bii) 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 any Preliminary Prospectus, the General 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 reasonable 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.
(c) (Aiii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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, the General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify 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 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 the Underwriters copies of the Registration Statement (three of which will be signed and will include all exhibits), each of the Preliminary Prospectus, the Prospectus, any written Information, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case 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 date hereof, the Company will furnish to each Underwriter copies of all periodic and special reports furnished to the stockholders of the Company and all information, documents and reports filed with the Commission and the National Association of Securities Dealers, Inc. ("NASD"), the Nasdaq Stock Market or any securities exchange.
(vii) 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 9(a) hereof or is terminated, will pay or cause to be paid (A) 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 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, (B) 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 the Underwriters shall designate in accordance with Section 4(a)(iv) hereof, (C) the fees and expenses of any transfer agent or registrar, (D) the filing fees incident to any required review by the NASD of the terms of the sale of the Securities, (E) listing fees, 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. If the sale of the Securities provided for herein is not consummated by reason of action by the Company pursuant to Section 9(a) hereof which prevents this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company or any Tayl▇▇ ▇▇▇ily Representative (as hereinafter defined) to perform any agreement on its or his part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by the Company or any Tayl▇▇ ▇▇▇ily Representative is not fulfilled, the Company will reimburse the Underwriters for all out-of-pocket disbursements (including reasonable fees and disbursements of counsel) 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.
(ix) 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.
(x) 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 or Preferred 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.
(xi) Other than as contemplated by this Agreement or any other agreement with either Underwriter, 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.
(xii) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information will be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
(xiii) The Company will, and will cause each Subsidiary to, comply in all material respects with all covenants and agreements of the Company and the Subsidiaries contained in the Split-Off Agreements.
(b) Each of Jeff▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ Bruc▇ ▇. ▇▇▇▇▇▇ (▇▇llectively the "Tayl▇▇ ▇▇▇ily Representatives" and individually a "Tayl▇▇ ▇▇▇ily Representative") covenants and agrees, jointly and severally, with the several Underwriters as follows:
Appears in 2 contracts
Sources: Purchase Agreement (Taylor Capital Group Inc), Purchase Agreement (Taylor Capital Group Inc)
Covenants. The Company covenants and agrees with the several Underwriters as follows4.1 I shall ensure that:
(a) If if the Initial Registration Statement has Lessee/Hirer is a company:
(i) the Lessee/Hirer does not already been declared effective by become insolvent;
(ii) the Commission, the Company will use its best efforts to cause the Initial Registration Statement Lessee/Hirer and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment other companies belonging to the Initial Registration Statement has become effective same group of companies as it (each such company a “fellow group company”) does not enter into any amalgamation, demerger, merger or any supplement to corporate reconstruction, without your consent; and
(iii) no change of Control in the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon Lessee/Hirer occurs without your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.consent;
(b) The Company I and any Surety will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of not be in default under 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 General 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) 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.Security;
(c) I pay on time any amount due under any agreement I have with you and do not do anything under any other agreement I have with you entitling you to terminate it;
(Ad) Within 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 time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”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 provide relevant information);
(e) my financial position and the Company will use financial position of any 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 any Surety to meet its best efforts obligations under any Security is materially adversely affected;
(f) I and any Surety comply in all respects with all laws to which I and any Surety may be subject, if failure so to comply with would materially impair my or the Surety’s ability to perform my or its obligations under this Agreement or a Security;
(g) I and any Surety notifies you in writing as soon as I or any Surety becomes aware of the occurrence of any event or 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 purposes of this Agreement shall also secure all requirements imposed upon it other indebtedness owed by the Securities Actme and any fellow group company, as now including any Surety (if applicable) to you and/or any financing you may subsequently make available to me 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 General Disclosure Package any fellow group company (if applicable) and the Prospectus. If during such period any event occurs as a result of which indebtedness that results from the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancesame.
Appears in 2 contracts
Sources: Finance Lease/Hire Purchase Agreement, Finance Lease/Hire Purchase/Agility/Hire Purchase With Balloon Agreement
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If The Sellers shall provide to Buyer such information and assistance as is reasonably required or as Buyer may reasonably request to enable Buyer to identify those Business Employees that are required for the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly operation of the time when Purchased Business on and after the Initial Registration Statement or any post-effective amendment to Closing Date in a manner consistent with past practice. Buyer, as soon as reasonably practicable after the Initial 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 Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsdate hereof, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 but no later than one Business Day prior to the filingClosing, 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 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 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 Closing 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) The Company will advise youNeither 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, promptly after it shall receive notice in each case, that is sponsored, maintained or obtain knowledge thereof, of contributed to by any Seller or any Seller Subsidiary for the issuance by the Commission benefit 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 General 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) 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 CommissionBusiness Employee.
(c) (Ai) Within 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 time during which operation of the Purchased Business on and after the Closing Date in a prospectus (assuming 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 absence of Rule 172) relating sponsor of, and to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer maintain, such plans (the “Prospectus Delivery PeriodBuyer 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 to the extent permitted under Applicable Law and the terms of the 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 Transferred Employees and their dependents under an Employee Plan prior to the Closing, in each case to the extent permitted under Applicable Law and the terms of the applicable Buyer Plan.
(ii) Following the Closing Date, to the extent permitted 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 applicable policies of the Sellers immediately prior to the Closing Date to the extent reflected on the Financial Statements. The Sellers shall provide Buyer with a record of such accrued paid time off for each Transferred Employee.
(d) With respect to Transferred Employees, Buyer and the Sellers shall use the alternative procedure set forth in Revenue Procedure 2004‑53, 2004-34 I.R.B. 320, for purposes of employment tax reporting.
(e) The Sellers shall be solely responsible for all grievances, arbitrations, claims, demands, or charges of any 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 Closing Date.
(f) Except as otherwise provided in Section 2.03(d)(ii), the Company will use its best efforts Sellers shall be responsible for all Workers’ Compensation Liabilities arising out of any occupational injury or injurious exposure occurring on or prior to comply with the Closing and Buyer shall be responsible for all requirements imposed upon it by Workers’ Compensation Liabilities arising out of any occupational injury to, or injurious exposure of, any Transferred Employee occurring following the Securities ActClosing. 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 now the case may be. For the avoidance of doubt, nothing in this Section 9.02(f) or the Workers Compensation and hereafter amendedBlack Lung Benefits Administration Agreement shall modify, limit or otherwise alter the obligations of the parties under Section 5.12 of this Agreement.
(g) 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 be eligible to effect a “direct rollover” (as described in Section 401(a)(31) of the Code) 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 by the Rules participant loan notes. Sellers and Regulations, as from time to time in force, so far as Buyer shall take all actions necessary to permit such direct rollovers as soon as practicable after the continuance of sales of or dealings in the Securities as contemplated by the provisions hereofClosing Date, the General 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 including Buyer providing evidence to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit Sellers reasonably satisfactory to state a material fact necessary to make the statements therein, in the light Sellers 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense qualified status of the CompanyBuyer 401(k) so Plan and of the ability of the Buyer 401(k) Plan to accept direct rollovers, and to 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 period of time or on any specific terms or conditions of any Transferred Employee after the Closing. Nothing contained in this Agreement shall be construed as an amendment or modification of any employee benefit plan of the Sellers or Buyer or any Designated Buyer or as an obligation to correct such statement or omission or effect such compliancethe transfers described in Section 9.02(g).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Contura Energy, Inc.), Asset Purchase Agreement (Contura Energy, Inc.)
Covenants. The Company Grantor covenants and agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the CommissionThe Grantor will not, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 without providing at least 30 days’ prior written notice to the Company after having been furnished a copy a reasonable time 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 filingpreceding 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 Company will advise youGrantor shall, promptly after it shall receive notice or obtain knowledge thereofat its own cost and expense, defend title to the Collateral and the First Priority lien and security interest of the issuance by Collateral Agent therein against the Commission claim of any stop order suspending person claiming against or through the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities Grantor and shall maintain and preserve such perfected First Priority security interest for offering or sale so long as this Agreement shall remain 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 Commissioneffect.
(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) the consent of the Requisite Holders, along with the Collateral Agent, shall be required for any sale of any 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) 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 at least US$20,000,000 of the Notes are purchased for cash and funded, and in any case prior to the date a definitive agreement with respect to a Therapeutic License Disposition is entered into, (A) Within such Therapeutic License Disposition must be approved in advance and in writing by the time during which Collateral Agent or (B) the sales price with respect to a prospectus (assuming the absence Therapeutic License Disposition must be supported by a valuation report of Rule 172) relating an independent consultant in form and substance reasonably satisfactory to the Securities is required Collateral Agent.
(d) The Grantor will keep the Collateral in good order and repair (subject to be delivered under casualty and normal wear and tear) and will not use the Securities Act same in violation of law or any policy of insurance thereon. The Grantor will permit the 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 the Collateral or incurred in connection with this Agreement.
(f) Whenever Grantor, either by itself or through any Underwriter agent, employee, licensee or dealer (designee, shall file an application for the “Prospectus Delivery Period”)registration of any intellectual property with the United States Patent and Trademark Office, the Company United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof that relates to or is in furtherance of the Collateral, Grantor shall report such filing to Collateral Agent. Grantor will use its best efforts take all reasonable and necessary steps to comply with maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of 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 intellectual property included in the Securities as contemplated by Collateral.
(g) Grantor will not amend the provisions License Agreement without the prior written consent of the 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 favor of the General Disclosure Package and Longitude Venture Partners II, L.P., subject, however, to the Prospectus. If during such period terms of the Intercreditor Agreement.
(i) The Grantor shall promptly notify the Collateral Agent of any event occurs as a result of which changes to the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, information contained 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceSchedules hereof.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Evolus, Inc.), Guaranty and Security Agreement (Evolus, Inc.)
Covenants. The Company covenants That Registrant’s eligibility to register for and agrees with use the several Underwriters as follows:
(a) If Domain Name is subject to all the Initial Registration Statement has not already been declared effective by terms, conditions, policies and requirements contained in the CommissionProposal, the Company will use Registration Agreement and this Agreement. As between the Parties, in the event of a conflict between the Proposal, the Proposal Agreement or the Registration 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 best efforts to cause the Initial Registration Statement Proposal are current, complete, reliable and accurate and any post-effective amendments thereto 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 become effective as promptly as possible; register the Company will notify you promptly Domain Name and/or denial, rejection or termination of the time when registration of the Initial Registration Statement Domain Name; Registry Operator shall provide an Authorization Code or any post-effective amendment 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 Initial Registration Statement has become effective Domain Name website within 18 months of the receipt of the Authorization Code or any supplement an equivalent method; Registrant’s failure to launch and maintain the Prospectus has been filed Domain Name website as specified in the Proposal and this Agreement may, at fTLD’s sole discretion, result in the imposition of any request by additional fees until such time as the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; Registrant is in compliance with this Agreement or, if the Company has elected Registrant fails to rely on Rule 430A comply, the revocation of the Rules Domain Name; and RegulationsThe Domain Name may not be assigned, transferred, 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, sale or conveyance the successor must confirm, in writing to Registry Operator, and agree to be bound to all the terms, conditions, policies and requirements contained in the Proposal, the Company will prepare Registration Agreement and file a Prospectus containing the information omitted therefrom pursuant to Rule 430A of the Rules this Agreement. This Agreement shall be governed by and Regulations with the Commission within the time period required by, and otherwise construed in accordance with the provisions of, Rules 424(b) and 430A laws of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b) Commonwealth of the Rules and Regulations to increase the size of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingVirginia.
(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 any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 2 contracts
Sources: Request for Proposal Agreement, Request for Proposal Agreement
Covenants. The Company Pledgor covenants and agrees with that from and after the several Underwriters as followsdate hereof and until the Obligations are fully, finally and irrevocably paid and performed:
(a) If a. without the Initial Registration Statement has not already been declared effective by prior written consent of the CommissionBank, the Company Pledgor will use its best efforts to cause not, except as expressly provided in the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly last grammatical paragraph of Section 7 of the time when Loan Agreement, sell, assign, transfer, exchange or otherwise dispose of, or grant any option with respect to, the Initial Registration Statement Collateral, nor will he create, incur or permit to exist any post-effective amendment lien, security interest or encumbrance with respect to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 StatementCollateral, or any post-effective amendment thereto or preventing or suspending interest therein, except for the use lien provided under this Pledge Agreement, and subject to the right of any Preliminary Prospectuscontest set forth in Paragraph 3, the General Disclosure PackagePledgor will take any action necessary to remove any such lien and will defend the right, the Prospectus or any Issuer Free Writing Prospectus, title and interest of the suspension Bank in and to the Collateral against the claims and demands of all persons;
b. Pledgor will warrant and defend his ownership of the qualification Collateral and the security interest created by this Pledge Agreement against all claims of all other persons (other than Bank and persons claiming through Bank) and will maintain and preserve the Collateral and such security interest;
c. without the prior written consent of the Securities for offering Bank (which shall not be unreasonably withheld, conditioned 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”delayed), the Company Pledgor will use its best efforts not vote to comply with all requirements imposed upon it by enable KRGLP or Kite Realty to issue any stock or other securities of any nature in exchange or substitution for the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as Collateral;
d. from time to time the Pledgor will, at the Pledgor’s 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 forcerespect of the Collateral in trust for the Bank segregated from other funds of the Pledgor, so far as necessary and shall forthwith upon receipt by the Pledgor deliver the same to permit the continuance of sales of or dealings Bank in the Securities same form as contemplated received by the provisions Pledgor, duly endorsed by the Pledgor to Bank, 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 Obligations except as permitted by Paragraph 6 hereof);
f. after the occurrence of an Event of Default, the General Disclosure Package Pledgor shall hold all payments of every kind received under or in connection with any of the Collateral in trust for the Bank, segregated from other funds of the Pledgor, and shall forthwith upon receipt by the Prospectus. If during such period any event occurs Pledgor deliver the same to the Bank in the same form as a result received by the Pledgor, duly endorsed by the Pledgor to the Bank, if required;
g. subject to the right of which the Prospectus (or if the Prospectus is not yet available to prospective purchaserscontest provided in Paragraph 3, the General Disclosure Package) would include an untrue statement Pledgor will pay prior to delinquency all taxes and assessments against any of a material fact the Collateral;
h. the Pledgor will not consent to, or omit to state a material fact necessary to make vote for, any modification or amendment to, or the statements thereintermination, suspension or cancellation of the Partnership Agreement that impairs the Bank’s interest in the light 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 circumstances then existing, not misleading, form attached hereto as Exhibit A. The Pledgor shall cooperate with Bank in such actions undertaken or if during such period it is initiated by Bank as may be reasonably necessary to amend under applicable law so that Bank has a first priority perfected security interest in the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceCollateral.
Appears in 2 contracts
Sources: Collateral Pledge Agreement (Kite Alvin E JR), Collateral Pledge Agreement (Kite John A)
Covenants. The Company agrees and covenants and agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the Commission(i) Prior to May 1, 2020, the Company will use its best efforts not take any action to cause accept, solicit, initiate, encourage, or assist the Initial Registration Statement and submission of any post-effective amendments thereto proposal, negotiation, or offer from any person or entity relating to become effective as promptly as possible; any debt or equity financing of the Company will notify you promptly 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 when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial Registration Statement or Prospectus or additional information; if the Company has elected proposes to rely on Rule 430A of the Rules and Regulationsaccept any debt or equity financing (including securities convertible into equity) from a Competitor, the Company will prepare shall deliver to the Investor the terms and file conditions (including a Prospectus containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required byterm sheet, 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(bapplicable) of such financing. The Investor shall have ten (10) business days to elect to make an investment on the Rules and Regulations same terms in lieu of such Competitor. If the Investor does not elect to increase the size of the offering registered under the Securities Act and the Rule 462(b) Registration Statement has not yet been filed and become effectivemake such investment, the Company will prepare and file Competitor may consummate a financing on the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements same terms as delivered to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed Investor. Any amendment or supplement change to a proposed financing shall be treated 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 same as a copy a reasonable time prior to the filingnew financing for purposes of this subsection 6(a).
(b) The Company will advise youIn the event that the Company, promptly after it shall receive notice at any time prior to conversion or obtain knowledge thereof, repayment of the issuance by Note, issues any convertible security (other than options to purchase Common Stock under the Commission of any stop order suspending the effectiveness of the Registration Statement2019 Stock Plan) (each a “Subsequent Convertible Instrument” and, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectuscollectively, the General Disclosure Package“Subsequent Convertible Instruments”) on terms that differ from the Note, the Prospectus or any Issuer Free Writing Prospectusthen, of the suspension of the qualification of the Securities for offering or sale in any jurisdictioneach case, or of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts provide to prevent the issuance Investor written notice of such new issuance, including the terms of any stop order or 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 obtain the holder(s) thereof than the terms set forth in its withdrawal if such a stop order should be issued. AdditionallyNote, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430A, as applicable, under the Securities Act and Investor will use its reasonable efforts to confirm that any filings made by promptly notify the Company under Rule 424(bof 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), Rule 433 or Rule 462 were received in a timely manner by the Commission.
(c) In the case of (Ai) Within a Qualified Financing or (ii) a Non-Qualified Financing in which the time during which a prospectus (assuming Investor elects to convert the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Note, the Company will use 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 applicable.
(d) The Investor and the Company will coordinate in good faith on a statement disclosing DaVita Inc. and its best efforts affiliates’ (“DaVita”) involvement with the Company. The Company may disclose the Investor’s name as a passive investor in the Company to comply with all requirements imposed upon it potential investors in a Qualified Financing or a Non-Qualified Financing, provided, that, (i) the Company 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 Securities Act, Investor. Except 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities Actprovided above, the Company will promptly notify you and will amend not use the Registration Statement name or supplement trademarks of DaVita or refer to DaVita’s relationship to the Prospectus (orCompany, if in any form of advertising, publicity or release without the Prospectus is not yet available to prospective purchasersInvestor’s prior written approval in the Investor’s sole direction. Except as provided above, the General Disclosure PackageCompany 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) (at So long as the expense Note remains outstanding, the Company shall not, without the prior written consent of the 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 Disclosure Schedules. “Indebtedness” shall include any (i) so as indebtedness for borrowed money, (ii) indebtedness evidenced by a note, bond, debenture or similar instrument or commercial paper (including purchase money obligations), (iii) obligations to correct reimburse or repay in respect of letters of credit, surety bonds or similar instruments, (iv) obligations under financing leases, and (v) capital leases for equipment entered into after the date of this Agreement to the extent that the aggregate value of all of such statement or omission or effect such compliance.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 Company covenants and agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the The Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to the Registration Statement to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 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; promptly 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 Act or the Rules and Regulations or as the Representatives and the Company may deem appropriate, and if requested by the Representatives, an Issuer Free Writing Prospectus containing the selling terms of the Securities Actand such other information as the Company and the Representatives 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; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 Base Prospectus, any Preliminary Prospectus, the General 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) and 430A430B, 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) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General 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 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 General 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.
Appears in 1 contract
Covenants. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(a) If During the Initial period beginning on the date hereof and ending on the later of the 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 Act), in connection with sales by the Underwriter or a dealer (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement has (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 already been declared effective by file any such proposed amendment or supplement to which the CommissionUnderwriter or counsel to the Underwriter reasonably objects. Subject to this Section 4(a), immediately following execution of this Agreement, the Company will use its best efforts to cause prepare the Initial Registration Statement Prospectus containing the Rule 430B Information and any post-effective amendments thereto to become effective other selling terms of the Securities, the plan of distribution thereof and such other information as promptly may be required by the Act or the Rules and Regulations or as possible; 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 notify you 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) After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time when the Initial Registration Statement or and date of any filing of any post-effective amendment to the Initial 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 Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsany Preliminary Prospectus, the Company will prepare and file a Prospectus containing Time of Sale Disclosure Package or the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required byProspectus, 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(iii) of the Rules time and Regulations to increase the size of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, date that any amendments or supplements post-effective amendment to the Registration Statement or Prospectus thatbecomes effective, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.
(biv) 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, Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of any Preliminary Prospectus, the General Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, or (v) of any proceedings to remove, suspend or terminate from listing or quotation the suspension of the qualification of the Securities Common Stock from any securities exchange upon which it is listed for offering trading or sale in any jurisdictionincluded or designated for quotation, or of the threatening or initiation or threatening of any proceeding proceedings for any of such purpose; and purposes. If the Commission shall enter any such stop order at any time, the Company will promptly use its best efforts to prevent obtain the issuance lifting of any such stop order or to obtain its withdrawal if such a stop order should be issuedat the earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) and 430A430B, 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 CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
(c) (Ai) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General 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 General 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 investors, the General Time of Sale Disclosure Package) to comply with the Securities 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 General Time of Sale Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Covenants. The Company covenants and agrees with (i) Buyer shall not take any action the several Underwriters as follows:
(a) If primary purpose of which is to reduce or eliminate the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts Earnout Consideration to cause the Initial Registration Statement and any post-effective amendments thereto be paid to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingSeller hereunder.
(bii) The Company will advise youBuyer and Seller shall act in good faith in an effort to agree, promptly after it shall receive notice or obtain knowledge thereofby December 15th of each year, upon an annual operating plan with respect to the business of the issuance by Group Companies for the Commission of any stop order suspending following calendar year (each, an “Operating Plan”); provided, with respect to the effectiveness of Operating Plan covering calendar year 2021, Buyer and Seller shall act in good faith in an effort to agree to such Operating Plan within ninety (90) days following the Registration StatementClosing Date. Buyer shall use commercially reasonable efforts to comply with the Operating Plan, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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 if Buyer and Seller are unable to agree to an Operating Plan 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. Additionallyrelevant period, the Company agrees that it Buyer 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 CommissionSupporting Obligations for such period.
(ciii) [**]
(iv) Buyer shall deliver or cause to be delivered to Seller such non-privileged information and data with respect to the Company as may be reasonably requested by Seller and that is reasonably necessary for Seller (A) Within to monitor the time during which a prospectus current progress of any Milestone or (assuming B) to verify that the absence of Rule 172) relating Group Companies are being operated in accordance with each Operating Plan, in each case subject to the Securities is required provisions of Section 11.02.
(v) Notwithstanding anything to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”contrary in Section 2.05(e)(i), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amendedSection 2.05(e)(ii), and by the Rules Section 2.05(e)(iii), (A) nothing in Section 2.05(e)(i), Section 2.05(e)(ii), and Regulations, as from time Section 2.05(e)(iii) shall require Buyer and its Subsidiaries 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 General Disclosure Package and the Prospectus. If during such period take any event occurs as a result of which the Prospectus action (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact or omit to state take any action) with respect to the Group Companies that is inconsistent with Buyer’s good faith commercial business judgment, taking into account the interests of Buyer and Buyer’s stockholders, and (B) Buyer and its Subsidiaries shall not be required to take any action in violation of Law.
(vi) The covenants in this Section 2.05(e) shall terminate after all Milestones have been obtained or occurred (other than Milestones for which the applicable conditions precedent set forth in Sections 2.05(a)(i) through 2.05(a)(viii) have not by the applicable deadline specified in such Sections 2.05(a)(i) through 2.05(a)(viii) been satisfied).
(vii) If, at any time during the six (6)-year period immediately following the Closing Date, a material fact necessary to make Buyer Sale is consummated and, at such time there are Milestones that have not been obtained or occurred (other than Milestones for which the statements therein, applicable conditions precedent set forth in Sections 2.05(a)(i) through 2.05(a)(viii) have not by the light of the circumstances then existing, not misleading, or if during applicable deadline specified in such period it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.Sections
Appears in 1 contract
Sources: Stock Purchase Agreement (Surgalign Holdings, Inc.)
Covenants. (a) The Company covenants and agrees with the several Underwriters as followsthat:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the The Company will will:
(x) use its reasonable best efforts to cause the Initial Registration Statement Statement, if not effective at the time of execution of this Agreement, and any post-effective amendments thereto to become effective as promptly as possible; possible after execution hereof. If required, the Company will notify you promptly file the Prospectus or any Term Sheet that 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 (x) will comply with all requirements imposed upon it by the Securities Act and the rules and regulations of the time when the Initial Registration Statement or any post-effective amendment Commission thereunder to the Initial Registration Statement has become effective extent necessary to permit the continuance of sales of or any supplement to dealings in the Prospectus has been filed Shares in accordance with the provisions hereof and of any request by the Prospectus, as then amended or supplemented, and (y) will not file with the Commission for the Prospectus, Term Sheet, any amendment or supplement to such Prospectus or Term Sheet, any amendment to the Initial Registration Statement (including the amendment referred to in the second sentence of Section 5(a)(i)) 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 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 and the any Rule 462(b) Registration Statement has not yet unless the Representatives previously have been filed advised of, and become effectivefurnished with a copy within a reasonable period of time prior to, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) proposed filing and the Securities Act; 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 your requestrequest by the Representatives or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, that may be necessary or advisable in connection with the distribution of the Securities Shares by the several Underwriters; and the . The Company will furnish advise the Representatives and counsel for Representatives, promptly after receiving notice thereof, of the Underwriters a copy of any proposed amendment or supplement to time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus and will not file or Term Sheet or any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Registration Statement Representatives of each such filing 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 filingeffectiveness.
(by) without charge, provide (x) 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), (y) 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 (z) 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 (z) of the preceding sentence, the Company, not later than (I) 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 (II) 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. The Company will provide or cause to be provided to each of the Representatives, and to each Underwriter that so requests in writing, a copy of each report on Form SR filed by the Company as required by Rule 463 under the Securities Act.
(z) advise youthe Representatives, promptly after it shall receive receiving notice or obtain obtaining knowledge thereof, of (w) the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement, Statement or any post-effective amendment thereto or any Rule 462(b) Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, the General Disclosure Package, Prospectus or the Prospectus or any Issuer Free Writing Prospectusamendment or supplement thereto, of (x) the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, (y) the institution, threatening or of the initiation or threatening contemplation of any proceeding for any such purpose; and , or (z) 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 promptly use its best efforts to prevent the issuance of any such stop order or and, if any such stop order is issued, to obtain its the 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, thereof 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 Commissionpromptly as possible.
(cii) 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 (A"Blue Sky") Within 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 during which prior to the final date when a prospectus (assuming the absence of Rule 172) relating to the Securities Shares is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus (Prospectus, as then amended or if the Prospectus is not yet available to prospective purchaserssupplemented, the General Disclosure Package) would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then existingunder which they were made, not misleading, or if during such period for any other reason it is shall be necessary at any time to amend or supplement the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities ActAct or the rules or regulations of the Commission thereunder or applicable law, the Company will promptly notify you the Representatives thereof and will amend promptly, at its own expense but subject to the second sentence of Section 3(a)(i) hereof: (x) prepare and file with the Commission an amendment or supplement to the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to which will correct such statement or omission or effect such compliance; and (y) supply any 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 the Representatives, 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 Closing, except pursuant to this Agreement and other than with respect to shares of Common Stock issued pursuant to the exercise of any stock options granted under the Company's stock option 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, (i) 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 price of any security of the Company to facilitate the sale or resale of the Shares or (ii) (x) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Shares or (y) 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 obtain the agreements described in Section 7(i) hereof prior to the First Closing Date and will (i) enforce the terms of each such agreement, and (ii) issue stop transfer instructions to the transfer agent for the Common Stock with respect to any transactions that would constitute a breach of or default under any such agreement.
(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 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 effect set forth above, forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event.
(x) If the Company elects to rely on Rule 462(b), the Company shall both
Appears in 1 contract
Sources: Underwriting Agreement (Aris Corp/)
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (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.
(bii) 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 any Preliminary Prospectus, the General 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) 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.
(c) (Aiii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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, the General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iv) 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 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.
(v) 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 and all documents incorporated by reference therein), each Preliminary Prospectus, the Prospectus, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case as soon as available and in such quantities as you may from time to time reasonably request. The terms “supplement” and “amendment” or “amend” as used in this Purchase Agreement shall include all documents subsequently filed by the Company with the Commission pursuant to Exchange Act that are deemed to be incorporated by reference in the Prospectus
(vi) During a period of five years commencing with the date hereof, the Company will furnish to the Representatives, and to each Underwriter who may so request in writing, copies of all 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).
(vii) 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 Purchase Agreement is prevented from becoming effective under the provisions of Section 9(a) hereof or is terminated, will pay or cause to be paid (A) all costs and expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the transfer and 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, except as otherwise provided below, not including fees of the Underwriters’ counsel) in connection with the preparation, printing, filing, delivery, and shipping (including, in each case, mailing and delivering copies thereof to the Underwriters and dealers) 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 (including, in each case, mailing and delivering copies thereof to the Underwriters and dealers) of this Purchase Agreement and other underwriting documents, including Blue Sky or Legal Investment Memoranda (covering the states and other applicable jurisdictions), (C) 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, and the cost of producing any Blue Sky or similar Legal Investment Memoranda, including the reasonable fees and disbursements of the Underwriters’ counsel in preparing such Blue Sky or similar Legal Investment Memoranda, (D) the fees and expenses of any transfer agent or registrar, (E) the filing fees and the reasonable fees and disbursements of the Underwriters’ counsel incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities, (F) listing fees in connection with the listing of the Shares on the Nasdaq National Market, (G) the cost of printing certificates representing the shares, (H) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing and/or offering of the Shares, including, without limitation, expenses associated with the production of road show slides and graphics and travel and lodging expenses of the representatives and officers of the Company; provided, however, that travel and lodging expenses not attributable solely to the Company’s representatives and officers, on the one hand, or the Underwriters, on the other hand (such as shared travel costs from a chartered jet) shall be shared equally by the Company and the Underwriters, (I) the document production charges and expenses associated with printing this Agreement and (J) 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 shall bear the cost of travel and lodging for the Underwriters in connection with the investor presentations on any “road show” undertaken in connection with the marketing and/or offering of the Shares. 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 or the Selling Stockholders to perform any agreement on its or their part to be performed, or because any other condition of the Underwriters’ obligations hereunder required to be fulfilled by the Company or the Selling Stockholders is not fulfilled, unless the failure to satisfy such conditions or to perform such agreements is directly attributable to the default of any Underwriter of its obligations under this Agreement, the Company will reimburse the several Underwriters for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) 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 Purchase Agreement.
(ix) 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.
(x) The Company will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., from the date of execution of this Purchase 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 to the Underwriters pursuant to this Purchase Agreement, except that the Company may, without such consent, (i) issue shares of Common Stock upon the exercise of options outstanding on the date of this Purchase Agreement issued pursuant to the Company’s 1999 Stock Incentive Plan, as amended (the “Stock Incentive Plan”), (ii) grant options pursuant to the Stock Incentive Plan, provided that any such option that is exercisable within ninety (90) days of the date of the Prospectus shall be subject to an agreement substantially similar to the agreements contemplated by Section 4(a)(xi), (iii) issue shares of Common Stock in connection with the acquisition by the Company of another company or entity, provided that the terms of such acquisition contractually prohibit the resale or other disposition of such shares of Common Stock through the Lock-Up Period and (iv) issue shares of Common Stock to the Underwriters pursuant to this Purchase Agreement.
(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 and each Selling Stockholder in substantially the form of Exhibit A hereto 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 Purchase Agreement, for a period of 90 days after commencement of the public offering of the Securities by the Underwriters (the “Lock-Up Agreements”). 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.
(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, 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.
(xiii) 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 Purchase Agreement or the consummation of the transactions contemplated hereby.
(xiv) The Company will file with the Commission such periodic and other reports as required by the Act, the Rules and Regulations, the Exchange Act and the rules and regulations of the Commission promulgated thereunder.
(xv) The Company and its subsidiaries will maintain such controls and other procedures, including without limitation those required by Sections 302, 404 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 Company, including its subsidiaries, is made known to them by others within those entities.
(xvi) The Company and its subsidiaries will comply in all material respects with all effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, the rules and regulations promulgated thereunder and the corporate governance, disclosure and compliance rules of Nasdaq contained in the Nasdaq Marketplace Rules to the extent applicable to the Company.
(xvii) The Company will cause the Securities to be quoted on the Nasdaq National Market no later than the First Closing Date.
(xviii) The Company will do and perform all things required or necessary to be done and performed
Appears in 1 contract
Covenants. The Company covenants and agrees with Covenants of the several Underwriters as follows:Vendors
(a) If The Vendors covenant and agree that, during the Initial Registration Statement period from the date of this Agreement until the Closing Date or the earlier termination of this Agreement in accordance with Part 8, except (i) with the consent of PhotoChannel to any deviation therefrom, which will not be unreasonably withheld or delayed (and in the event that the Vendors give a written request to the Purchaser for consent to be provided, including reasonable details as to the matter in respect of which the consent is required, and notice of the Purchaser's refusal to give consent (together with the reasonable grounds for such refusal) has not already been declared effective given by the CommissionPurchaser to the Vendors in writing within 7 Business Days of receipt of the Vendors written request for consent, then consent shall be deemed to have been given by the Purchaser in respect of the Vendors' request); or (ii) with respect to any matter contemplated by this Agreement, the Company Vendors will:
(i) carry on the WorksMedia Business in, and only in, the ordinary and regular course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable efforts to preserve intact its present business organization and keep available the services of its present officers and employees and others having business dealings with it to the end that its goodwill and business will be maintained;
(ii) not commence to undertake a substantial change of the WorksMedia Business facilities;
(iii) not split, combine or reclassify any of its securities nor declare, set aside or pay any dividends on or make any other distributions on or in respect of the Purchased Shares or any other securities in its capital;
(iv) not amend the memorandum or articles of association of WorksMedia;
(v) not sell, pledge, encumber, allot, reserve, set aside or issue, authorize, solicit or propose the sale, pledge, encumbrance, allotment, reservation, setting aside or issuance of, or purchase or redeem or propose the purchase or redemption of, the Purchased Shares or any other shares in its capital stock or any class of securities convertible or exchangeable into, or rights, warrants or options to acquire, any such shares or other convertible or exchangeable securities;
(vi) not reorganize, amalgamate or merge WorksMedia with any other entity, nor acquire or agree to acquire by amalgamating, merging or consolidating with, purchasing substantially all of the assets of or otherwise, any business of any corporation, partnership, association or other business organization or division thereof;
(vii) except with respect to the sale of Products in the ordinary and regular course of business consistent with past practice or consistent with reasonable commercial practice, not sell, pledge, encumber, lease or otherwise dispose of any material assets;
(viii) not enter into any new non-arm's length transactions whatsoever, not modify or amend the terms of any arrangements or agreements with any non-arm's length party, and not guarantee the payment of material indebtedness or incur material indebtedness for money borrowed nor issue or sell any debt securities provided that this shall not restrict the ability of WorksMedia from entering into agreements with suppliers in the ordinary course of business pursuant to which WorksMedia will become indebted to the supplier for goods or service delivered;
(ix) use its best all reasonable efforts to comply promptly with all requirements which applicable Laws may impose on WorksMedia or the Vendors with respect to the transactions contemplated hereby;
(x) not, except in the usual, ordinary and regular course of business and consistent with past practice or reasonable commercial practice: (A) satisfy or settle any claims or liabilities prior to the same being due, except such as have been reserved against in the Accounts or the Management Accounts, which are, individually or in the aggregate, material; or (B) grant any waiver, exercise any option or relinquish any contractual rights;
(xi) use all reasonable commercial efforts to cause the Initial Registration Statement and WorksMedia's current insurance (or re-insurance) policies not to be cancelled or terminated or any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when coverage thereunder to lapse;
(xii) not settle or compromise any claim or suit brought by any present, former or purported officer, employee or holder of any of its securities as a consequence of this Agreement and as soon as reasonably practicable advise PhotoChannel of such claim;
(xiii) except in the Initial Registration Statement usual, ordinary and regular course of business and consistent with past practice or reasonable commercial practice or as required by applicable Laws, not enter into or modify in any post-effective amendment material respect any contract, agreement, commitment or arrangement;
(xiv) not incur or commit to capital expenditures or other commitments prior to the Initial Registration Statement has become effective Closing Date except in the ordinary course consistent with past practice or reasonable commercial practice and not, in any supplement event, exceeding $50,000 in the aggregate;
(xv) not make any changes to existing accounting practices relating to WorksMedia (except as required by Law);
(xvi) not increase the Prospectus has been filed and of compensation, or pay any request by the Commission for bonus to or pay any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsdividend to, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430A employees, officers, consultants or directors of the Rules and Regulations with the Commission within the time period required byWorksMedia, and otherwise except in accordance with the provisions ofterms of written agreements which existed and were in effect prior to June 1, Rules 424(b2008 or other commitments as Disclosed at the time of executing this Agreement; and
(xvii) and 430A promptly advise PhotoChannel in writing:
(A) of any event occurring subsequent to the date of this Agreement that would render any Warranty of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b) Vendors contained in this Agreement (except any such Warranty which speaks as of the Rules and Regulations to increase the size of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 date prior to the filingoccurrence of such event), if made on or as of the date of such event or the Closing Date, untrue or inaccurate in any material respect without such disclosure;
(B) of any Material Adverse Change in respect of WorksMedia; and
(C) of any material breach by WorksMedia of any covenant or agreement contained in this Agreement.
(b) The Company will advise youVendors will, promptly after it and shall receive notice ensure that WorksMedia will, perform all obligations required or obtain knowledge thereofdesirable to be performed by them under this Agreement, co-operate with PhotoChannel in connection therewith, and do all such other acts and things as may be necessary in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this Agreement and, without limiting the generality of the issuance by foregoing, WorksMedia and the Commission of any stop order suspending Vendors will:
(i) defend all lawsuits or other legal, regulatory or other proceedings challenging or affecting this Agreement or the effectiveness consummation of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the transactions contemplated hereby;
(ii) use of any Preliminary Prospectus, the General 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) and 430A, as applicable, under the Securities Act and will use its all reasonable efforts to confirm that have lifted or rescinded any injunction or restraining order or other order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby;
(iii) effect all necessary filings made and submissions of information required from WorksMedia by Governmental Entities; and
(iv) use all reasonable efforts to obtain all necessary waivers, consents and approvals required to be obtained by WorksMedia from other parties to loan agreements, leases or other contracts, if and where applicable, provided neither the Vendors nor WorksMedia shall be under any obligation in respect of compliance with TSXV requirements or Canadian Laws.
4.2 PhotoChannel covenants and agrees with the Vendors to:
(a) perform all obligations required to be performed by it under this Agreement, to co-operate with WorksMedia and the Vendors in connection therewith, and to do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and, without limiting the generality of the foregoing, to:
(i) effect all necessary filings and submissions of information required by the Company under Rule 424(bTSXV;
(ii) reserve a sufficient number of PhotoChannel Shares for issuance on the Closing Date; and
(b) promptly advise WorksMedia and the Vendors orally and, if then requested, in writing:
(i) of any event occurring subsequent to the date of this Agreement that would render any representation or warranty of PhotoChannel contained in this Agreement (except any such representation or warranty which speaks as of a date prior to the occurrence of such event), Rule 433 if made on or Rule 462 as of the date of such event or the Closing Date, untrue or inaccurate in any material respect;
(ii) of any Material Adverse Change in respect of PhotoChannel; and
(iii) of any material breach by PhotoChannel of any covenant or agreement contained in this Agreement.
(a) Upon reasonable notice, each of the Parties will afford the other's officers, employees, counsel, accountants and other authorized representatives and advisors ("Representatives") access, during normal business hours from the date hereof and until the earlier of the Closing Date or the termination of this Agreement, to their properties, books, contracts and records as well as to its management personnel (provided that the obligations on the Vendors in this paragraph shall be limited to procuring access to the properties, books, contracts and records of WorksMedia and shall not, for the avoidance of doubt, relate to their own personal properties, books, contracts and records), and, during such period, the Parties will furnish promptly to the other all information concerning that Party's business, properties and personnel as the other may reasonably request. Nothing in the foregoing will require a Party to disclose information subject to a written confidentiality agreement with third parties or customer-specific or competitively sensitive information relating to areas or projects where a Party is in direct competition with the other.
(b) Each of the Parties acknowledges that certain information provided to them under §2.4(f), §4.3(a) or otherwise pursuant to this Agreement will be non-public and/or proprietary in nature (the "Information"). Except as permitted below, each of the Parties will keep the Information confidential and will not, without the prior written consent of the others, disclose it, in any manner whatsoever, in whole or in part, to any other Person, and will not use it for any purpose other than to evaluate the transactions contemplated by this Agreement. Each of the Parties will make all reasonable, necessary and appropriate efforts to safeguard the Information from disclosure to anyone other than as permitted hereby and to control the copies, extracts or reproductions made of the Information. The Information may be provided to the Representatives of each of the Parties who require access to the same to assist it in proceeding in good faith with the transactions contemplated by this Agreement and whose assistance is required for such purposes, provided that it has first informed such Representatives to whom Information is provided that the Representative has the same obligations, including as to confidentiality, restricted use and otherwise, that it has with respect to such Information. This provision will not apply to such portions of the Information that: (i) are or become generally available to the public otherwise than as a result of an unauthorised disclosure by a Party or its Representatives; or (ii) become available to a party on a non-confidential basis from a source other than, directly or indirectly, the other Party or its Representatives, provided that such source is not to the knowledge of the first party, upon reasonable inquiry, prohibited from transmitting the Information by a contractual, legal or fiduciary obligation; (iii) were received known to a Party or were in its possession on a timely manner non-confidential basis prior to being disclosed to it by the Commissionother Party or by someone on its behalf; or (iv) are required by applicable Laws or court order to be disclosed. The provisions of this §4.3(b) will survive the Closing and the termination of this Agreement.
(c) The Parties acknowledge that certain Information may be competitively sensitive and that disclosure thereof will be limited to that which is reasonably necessary for the purpose of (Ai) Within the time during which a prospectus (assuming the absence of Rule 172) relating preparing necessary submissions or applications to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer TSXV, (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amendedii) avoiding conflicts, and by (iii) integrating the Rules operations of PhotoChannel 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceWorksMedia.
Appears in 1 contract
Covenants. The Company covenants and agrees with the several Underwriters as followsthat:
(ai) If The Company will cause the Initial Registration Statement has Prospectus Supplement to be filed as required by Section 2(a)(i) hereof (but only if you or your counsel have not already reasonably objected thereto by notice to the Company after having been declared effective by furnished a copy a reasonable time prior to filing) and will notify you promptly of such filing. During the Commissionperiod in which a prospectus relating to the Securities is required to be delivered under the Act, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will (i) notify you promptly of the time when the Initial Registration Statement or any post-effective subsequent amendment to the Initial Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or for 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 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(ii) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counselin your opinion, may be necessary or advisable in connection with the your distribution of the Securities by the Underwriters; Securities, and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed (iii) file no amendment or supplement to the Registration Statement or Prospectus and will not file (other than any amendment or supplement document required to be filed under the Registration Statement or Prospectus Exchange Act that upon filing is deemed to be incorporated by reference therein) to which you or your counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(bii) 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 any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, 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 the Company it 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.
(ciii) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the The Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the 1933 Act Rules and Regulations, the Exchange Act, the Exchange Act Rules and Regulations and the TIA as from time to time in force, so far as necessary to permit the continuance of sales of of, or dealings in in, the Securities as contemplated by the provisions hereof, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.the
Appears in 1 contract
Covenants. The Company Pledgor hereby covenants and agrees with that until the several Underwriters as followsSecured Obligations have been paid or otherwise satisfied in full:
(a) If it shall warrant and defend the Initial Registration Statement has right and title of the Pledgee conferred by this Pledge Agreement in and to the Pledged Collateral at the cost of the Pledgor against the claims and demands of all persons whomsoever;
(b) it shall not already been declared effective 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 the lien created hereby;
(c) it shall not amend or modify any organizational document of the Pledged Company;
(d) it shall not vote the Pledged Shares of the Pledged Company in favor of the consolidation, merger, dissolution, liquidation or any other corporate reorganization of the Pledged Company;
(e) it shall not take from the Pledged Company any undertaking or security in respect of its liability hereunder or in respect of any other liability of the Pledged 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 Pledged Company to the Pledgor, in any insolvency or liquidation, or analogous proceedings under any applicable law, of the Pledgor;
(f) there shall not be issued any additional shares of capital stock in the Pledged Company nor any options, warrants or other agreements to do so issued or entered into;
(g) it shall not release, transfer or otherwise dispose of any shares of capital stock held by the CommissionPledged Company as treasury stock or otherwise;
(h) it shall furnish to Pledgee from time to time statements and schedules further identifying and describing the Pledged Collateral as Pledgee reasonably requests, the Company will use its best efforts all in reasonable detail;
(i) it shall give at least thirty (30) days’ prior written notice to cause the Initial Registration Statement and Pledgee of any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly (i) change of the time when location of Pledgor’s chief executive office from that specified in Section 4(j) hereof, (ii) change of Pledgor’s name, identity or structure or (iii) reorganization or reincorporation of Pledgor under the Initial Registration Statement laws of another jurisdiction; and
(j) it shall indemnify the Pledgee from, and hold it harmless against, any and all liabilities with respect to, or resulting from, any post-effective amendment delay in paying any and all stamp, excise, sales or other taxes which may be payable or determined to the Initial Registration Statement has become effective or be payable with respect to any supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments Pledged Collateral or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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 transaction contemplated by the provisions hereof, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancethis Pledge Agreement.
Appears in 1 contract
Sources: Secured Loan Agreement (Comarco Inc)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(ai) If During the Initial 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 has not already been declared effective by Statement, including any Rule 462(b) Registration Statement), the CommissionTime of Sale Disclosure Package or the Prospectus, the Company will use its best efforts shall furnish to cause the Initial Registration Statement Underwriters for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Representative or Prospectus or additional information; if counsel to the Company has elected Underwriters reasonably objects. Subject to rely on Rule 430A this Section 4(i), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Representative and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofRepresentative, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byRepresentative may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(bii) The Company will advise youthe Representative, 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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) and 430A), 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.
(ciii) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Representative and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 1 contract
Covenants. (A) The Company covenants and agrees with the several Underwriters as follows:
(aI) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (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.
(bII) 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 any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.order
Appears in 1 contract
Covenants. The So long as there are amounts outstanding under this Note, the Company covenants shall not make any payments on, or redemptions of, any capital stock held by TMP DM, LLC, a Delaware limited liability company and agrees with the several Underwriters parent company of the Company (“Holdings”), unless, as part of such transaction the Note is being paid in full; provided that, if at any time prior to the maturity date of this Note the Company sells or otherwise disposes of all or any part of the capital stock or assets of ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation and wholly-owned subsidiary of the Company, in a transaction which is not otherwise a Sale of the Company, then an amount not to exceed the sum of $2.0 million plus twenty percent (20%) of the remaining proceeds from such sale shall be distributed to Holdings and the remaining eighty percent (80%) of such proceeds shall be used as follows:
: (a) If 24% of such remaining net proceeds shall be used to repay the Initial Registration Statement has outstanding term loan under the Credit Agreement described in clause (ii) of the definition thereof and (b) 76% of such remaining net proceeds shall be used to repay the outstanding term loan and, if no term loan is outstanding revolving loans, under the Credit Agreement described in clause (i) of the definition thereof, in such case giving effect to any new agreements or modifications permitted under clause (iv) of the definition of “Credit Agreements”, provided that this clause cannot already been declared effective by be changed without the Commissionprior written consent of the Holder; provided further that, the Company will use its best efforts shall be permitted to cause the Initial 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 Initial Registration Statement make payments on, or any post-effective amendment to the Initial 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 Initial 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 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 redemptions 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable capital stock held by Holdings in connection with the distribution termination of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy officers, directors or other services providers 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, Holdings or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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 issuedSubsidiaries. AdditionallyIn addition, the Company agrees that it shall comply with deliver to the provisions of Rules 424(b) and 430AHolder, as applicable, at the same time such materials are delivered under the Securities Act Credit Agreements, the annual audited financial statements of Holdings and will shall 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) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating deliver to the Securities is required to be delivered under Holder within 30 days, but in any event not later than 45 days, after the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)end of each fiscal quarter, the unaudited quarterly balance sheets and statement of income and cash flows of Holdings for such quarter and year to date. The Company will use its best efforts to comply 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, the General 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 bound by or subject to prospective purchasers, the General Disclosure Package) would include an untrue statement of a material fact any other covenants or omit agreements with respect 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancethis Note.
Appears in 1 contract
Covenants. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(ai) If During the Initial Registration Statement has not already been declared effective 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 CommissionUnderwriter (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 will use its best efforts shall furnish to cause the Initial Registration Statement Underwriter for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Underwriter or Prospectus or additional information; if the Company has elected its counsel reasonably objects. Subject to rely on Rule 430A this Section 4(i), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Underwriter and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofUnderwriter, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byUnderwriter may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(bii) The Company will advise youthe 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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 or, to the Company’s knowledge, of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best reasonable 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), 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.
(ciii) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 1 contract
Covenants. The Company covenants MIDAS, during the period between the date hereof and the Closing Date, except as expressly contemplated by this Agreement or otherwise consented to by MARELLI in writing, agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial Registration Statement has become effective or any supplement to following.
4.1 The Midas Companies shall be conducted only in the Prospectus has been filed ordinary course of business and of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsin accordance with past practices, 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 which were in accordance with the provisions oflaw, Rules 424(b) prudent and 430A 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 Rules Midas Companies, except for those certain shareholder and Regulations; if the Company has elected corporate structure changes which have been disclosed to rely upon Rule 462(b) MARELLI. No employees, consultants, commercial agents or representatives of the Rules Midas Companies shall be hired or dismissed; none or the respective rights and Regulations to increase obligations thereof shall be modified, except in the size ordinary course of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise business in accordance with the provisions ofpast practices or as mandated by law or applicable national collective bargaining agreements.
4.3 No leases, Rule 462(breal estate conveyances, major contracts (including licensing or distribution agreements, mortgages, pledges, joint venture agreements, loans or credit agreements) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, of any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities Midas Companies shall be made, amended or terminated.
4.4 No contracts or commitments shall be entered into by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters a copy or on behalf of any proposed amendment of the Midas Companies that extend beyond the Closing Date, or supplement to involve the Registration Statement purchase, sale, or Prospectus and will not file any amendment or supplement to encumbrance of fixed assets, except commitments which are normal in the Registration Statement or Prospectus to which you shall reasonably object by notice to ordinary course of the Company after having been furnished a copy a reasonable time prior to the filingbusiness.
(b) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, 4.5 None of the issuance by the Commission 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 stop order suspending the effectiveness development; in addition, none of the Registration StatementMidas Companies shall settle any threatened or pending litigation without the prior consent of MARELLI.
4.6 No transaction shall take place between any of the Midas Companies, MIDAS and their respective shareholders, or any post-effective amendment thereto subsidiary or preventing affiliated company thereof, except transactions at arm's length or suspending the use of any Preliminary Prospectus, the General 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; transactions which were not 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 shall not 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating detrimental to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceMidas Companies.
Appears in 1 contract
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (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.
(bii) 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 any Preliminary Prospectus, the General 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) 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.
(c) (Aiii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to comply as far as it is able with all requirements imposed upon it by the Securities Act and the 1934 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 General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify 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 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 the Underwriters and counsel for the Underwriters copies of the Registration Statement (three of which will be signed and will include all consents, exhibits and documents incorporated therein or filed therewith), each Preliminary Prospectus, the Prospectus, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case 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 date hereof, the Company will furnish to the Representative, and to each Underwriter who may so request in writing, copies of all 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. ("NASD") or other self-regulatory organization, the Nasdaq National Market or any securities exchange.
(vii) 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 9(a) hereof or is terminated, will pay or cause to be paid (A) all expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the 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, except as otherwise 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, (C) 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, (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 9(a) hereof which prevents this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company or the Selling Stockholder to perform any agreement on its or their part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by the Company or the Selling Stockholder is not fulfilled, the Company will reimburse the several Underwriters for all out-of-pocket disbursements (including fees and disbursements of counsel) 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.
(ix) 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.
(x) The Company will not, without your prior written consent, 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; 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, except to the Underwriters pursuant to 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.
(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 and any stockholder which you identify to us in writing stating that such person agrees that he or she will not, without your prior written consent, directly or indirectly, offer for sale, sell, contract to sell or otherwise dispose of 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 applicable Lock-Up Agreement.
(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, 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.
(xiii) 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.
(xiv) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information will be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
(xv) The Company will file with the Commission such periodic and special reports as required by the Rules and Regulations.
(xvi) The Company shall use its best efforts to obtain approval for additional shares of Common Stock (such that all of the Securities shall be included in or approved for inclusion in the Nasdaq National Market or in lieu thereof the New York Stock Exchange or another national securities exchange), and to remain so listed for at least five years from the effective date of the Registration Statement or for such shorter period as may be specified in a written consent of the Representative.
(xvii) Except as contemplated by the Prospectus and pursuant to a publicly announced stock repurchase program to purchase shares of Common Stock or pursuant to the Company's 1997 Stock Incentive Plan, as amended, or the Company's Employee Stock Purchase Plan, the Company shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representative, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Company's securities.
(xviii) Prior to the First Closing Date (and, if applicable, the Second Closing Date), the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its subsidiaries or the offering of the Securities without your prior written consent.
(xix) The Company and its subsidiaries shall conduct their businesses in material compliance with all applicable federal and state laws, rules, regulations, decisions, directives and orders (including, without limitation, the applicable provisions of the Act, the 1934 Act, the Rules and Regulations, the BHC Act, the National Bank Act, the Federal Deposit Insurance Corporation Improvement Act, the Illinois General Corporation Act, the Illinois banking laws and all decisions, directives and orders of the FDIC, the OCC, the Illinois Banking Commissioner, the Illinois Banking Board, and the Board of Governors of the Federal Reserve System, as applicable).
(b) The Selling Stockholder covenants and agrees with the several Underwriters as follows:
(i) Except as otherwise agreed to by the Company and the Selling Stockholder, the Selling Stockholder will pay all taxes, if any, on the transfer and sale, respectively, of the Securities being sold by the Selling Stockholder, the fees of the Selling Stockholder's counsel and the Selling Stockholder's proportionate share (based upon the number of Securities being offered by the Selling Stockholder pursuant to the Registration Statement) of all costs and expenses (except for legal and accounting expenses and fees of the registrar and transfer agent) incurred by the Company pursuant to the provisions of Section 4(a)(viii) of this Agreement; provided, however, that the Selling Stockholder severally agrees to reimburse the Company for any reimbursement made by the Company to the Underwriters pursuant to Section 4(a)(viii) hereof to the extent such reimbursement resulted from the failure or refusal on the part of the Selling Stockholder to comply under the terms or fulfill any of the conditions of this Agreement.
(ii) If this Agreement shall be terminated by the Underwriters because of any failure, refusal or inability on the part of the Selling Stockholder to perform any agreement on the Selling Stockholder's part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by the Selling Stockholder is not fulfilled, the Selling Stockholder agrees to reimburse the several Underwriters for all out-of-pocket disbursements (including fees and disbursements of counsel for the Underwriters) 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 Selling Stockholder shall not in any event be liable to any of the Underwriters for loss of anticipated profits from the transactions covered by this Agreement.
Appears in 1 contract
Covenants. (a) The Company covenants and agrees with the several Underwriters as followsthat:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the The Company will will:
(x) use its best efforts to cause the Initial Registration Statement Statement, if not effective at the time of execution of this Agreement, and any post-effective amendments thereto to become effective as promptly as possible; . If required, the Company will notify you promptly file the Prospectus or any Term Sheet that 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 time when the Initial Registration Statement or any post-effective amendment Commission thereunder to the Initial Registration Statement has become effective extent necessary to permit the continuance of sales of or any supplement to dealings in the Prospectus has been filed Shares in accordance with the provisions hereof and of any request by the Prospectus, as then amended or supplemented, and (II) will not file with the Commission for the Prospectus, Term Sheet, any amendment or supplement to such Prospectus or Term Sheet, any amendment to the Initial Registration Statement (including the amendment referred to in the second sentence of Section 5(a)(i) hereof) 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 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 and the any Rule 462(b) Registration Statement has not yet unless the Representatives previously have been filed advised of, and become effectivefurnished with a copy within a reasonable period of time prior to, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) proposed filing and the Securities Act; 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 your requestrequest by the Representatives or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, that may be necessary or advisable in connection with the distribution of the Securities Shares by the several Underwriters; and the . The Company will furnish advise the Representatives and counsel for Representatives, promptly after receiving notice thereof, of the Underwriters a copy of any proposed amendment or supplement to time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus and will not file 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 Prospectus any Rule 462(b) Registration Statement (in each case including exhibits thereto), (II) to which you shall reasonably object by notice 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 Company after having been furnished a copy a reasonable time 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 filing.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
(bz) The Company will advise youthe Representatives, promptly after it shall receive receiving notice or obtain obtaining knowledge thereof, of (I) the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement, Statement or any post-effective amendment thereto or any Rule 462(b) Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, the General Disclosure Package, Prospectus or the Prospectus or any Issuer Free Writing Prospectusamendment or supplement thereto, of (II) the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, (III) the institution, threatening or of the initiation or threatening contemplation of any proceeding for any such purpose; and 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 promptly use its best efforts to prevent the issuance of any such stop order or and, if any such stop order is issued, to obtain its the 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, thereof 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 Commissionpromptly as possible.
(cii) 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 (A"Blue Sky") Within 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 during which prior to the final date when a prospectus (assuming the absence of Rule 172) relating to the Securities Shares is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus (Prospectus, as then amended or if the Prospectus is not yet available to prospective purchaserssupplemented, the General Disclosure Package) would include an 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 then existingunder which they were made, not misleading, or if during such period for any other reason it is shall be necessary at any time to amend the Registration Statement or amend or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities ActAct or the rules or regulations of the Commission thereunder or applicable law, the Company will promptly notify you the Representatives thereof and will amend 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 (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to 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 and other than with respect to (a) shares of Common Stock to be issued upon the exercise of a warrant to purchase shares of Common Stock, or upon conversion or exchange of securities convertible or exchangeable into shares of Common Stock, in each case, which are outstanding on the date hereof and disclosed in the Prospectus, and (b) 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 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 price of any security of the Company to facilitate the sale or resale of the 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 be construed to apply to the 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 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 effect set forth above, forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event.
(x) If the Company elects to rely on Rule 462(b), the Company shall both file the Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated under the Securities Act by the earlier of (x) 10:00 P.M. New York City time on the date of this Agreement and (y) the time confirmations are sent or given, as specified by Rule 462(b)
Appears in 1 contract
Covenants. (a) The Company covenants and agrees with the several Underwriters Underwriter as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its reasonable best efforts to cause the Initial Registration Statement and any post-post effective amendments thereto to become effective as promptly as possible; the Company will notify you the Underwriter promptly of the time when the Initial Registration Statement or any post-post effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed 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 Initial Registration Statement or Prospectus or for 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 Statement, Time of Sale Disclosure Package or Prospectus to which you the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(bii) The Company will advise youthe 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 General Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any 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.
(c) (A) Within the time during which a prospectus (assuming or in lieu thereof the absence of notice referred to in Rule 172173(a)) relating to the Securities Shares is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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 sales of or dealings in the Securities Shares as contemplated by the provisions hereof, the General 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General Time of Sale Disclosure Package) to comply with the Securities Act, the Company will promptly notify you the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Time of Sale Disclosure Package) (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, 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 is not otherwise so subject.
(iv) The Company will furnish to the Underwriter 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 amendments and supplements to such documents, in each case as soon as available and in such quantities as the 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 Company and all information, documents and reports filed with the Commission, the National Association of Securities Dealers, Inc., the Nasdaq Global Select Market or any securities exchange (other than any such information, documents and 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 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 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 consummation 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 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 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 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 the requirements of Rule 433 applicable to any 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 condition
Appears in 1 contract
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (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.
(bii) 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 any Preliminary Prospectus, the General 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) 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.
(c) (Aiii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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, the General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify 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 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 the Underwriters copies of the Registration Statement (three of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case 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 date hereof, the Company will furnish to the Representatives, and to each Underwriter who may so request in writing, copies of all 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.
(vii) 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 9(a) hereof or is terminated, will pay or cause to be paid (A) all expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the 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, except as otherwise 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, (C) all filing fees and the 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 you shall designate in accordance with Section 4(d) hereof, (D) the fees and expenses of any transfer agent or registrar, (E) 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, (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 9(a) hereof which prevents this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company or the Selling Stockholders to perform any agreement on its or their part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by the Company or the Selling Stockholders is not fulfilled, the Company will reimburse the several Underwriters for all reasonable out-of-pocket disbursements (including reasonable fees and disbursements of counsel) 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.
(ix) 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.
(x) [Except for granting options under the Company's option plans and the issuance of shares of Common Stock upon the exercise of options issued under the Company's option plans, the] Company will not, without your prior written consent, 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 Underwriters pursuant to this Agreement for a period of 180 days after the commencement of the public offering of the Securities by the Underwriters.
(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 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 your prior written consent, offer for sale, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to purchase Common Stock, except to the Underwriters pursuant to this Agreement, for a period of 180 days after commencement of the public offering of the Securities by the Underwriters.
(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, 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.
(xiii) Except for the underwriting discount contemplated by the Prospectus and payable to the Underwriters, 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.
(b) Each Selling Stockholder covenants and agrees with the several Underwriters as follows:
(i) Except as otherwise agreed to by the Company and the Selling Stockholder, such Selling Stockholder will pay all taxes, if any, on the transfer and sale, respectively, of the Securities being sold by such Selling Stockholder, the fees of such Selling Stockholder's counsel and such Selling Stockholder's proportionate share (based upon the number of Securities being offered by such Selling Stockholder pursuant to the Registration Statement) of all costs and expenses (except for legal and accounting expenses and fees of the registrar and transfer agent) incurred by the Company pursuant to the provisions of Section 4(a)(viii) of this Agreement; provided, however, that each Selling Stockholder severally agrees to reimburse the Company for any reimbursement made by the Company to the Underwriters pursuant to Section 4(a)(viii) hereof to the extent such reimbursement resulted from the failure or refusal on the part of such Selling Stockholder to comply under the terms or fulfill any of the conditions of this Agreement.
(ii) If this Agreement shall be terminated by the Underwriters because of any failure, refusal or inability on the part of such Selling Stockholder to perform any agreement on such Selling Stockholder's part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by such Selling Stockholder is not fulfilled, such Selling Stockholder agrees to reimburse the several Underwriters for all out-of-pocket disbursements (including reasonable fees and disbursements of counsel for the Underwriters) 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 Selling Stockholder shall not in any event be liable to any of the Underwriters for loss of anticipated profits from the transactions covered by this Agreement.
(iii) The Securities to be sold by such Selling Stockholder, represented by the certificates on deposit with the Custodian pursuant to the Custody Agreement of such Selling Stockholder, are subject to the interest of the several Underwriters and the other Selling Stockholders; the arrangements made for such custody are, except as specifically provided in the Custody Agreement, irrevocable; and the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement, by any act of such Selling Stockholder, by operation of law, whether by the liquidation, dissolution or merger of such Selling Stockholder, by the death of such Selling Stockholder, or by the occurrence of any other event. If any Selling Stockholder should liquidate, dissolve or be a party to a merger or if any other such event should occur before the delivery of the Securities hereunder, certificates for the Securities deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such liquidation, dissolution, merger or other event had not occurred, whether or not the Custodian shall have received notice thereof.
(iv) Such Selling Stockholder will not, without your prior written consent, offer for sale, sell, contract to sell, grant any option for the sale of or otherwise 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 Underwriters pursuant to this Agreement, for a period of 180 days after the commencement of the public offering of the Securities by the Underwriters.
(v) Such Selling Stockholder 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 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, if effected by the Company, would be required to be disclosed in response to Item 701 of Regulation S-K.
(vi) Such Selling Stockholder shall immediately notify you if any event occurs, or of any change in information relating to such Selling Stockholder or the Company or any new information relating to the Company or relating to any matter stated in the Prospectus or any supplement thereto (including any term sheet within the meaning of Rule 434 of the Rules and Regulations), which results in the Prospectus (as supplemented) including an untrue statement of a material fact or omitting to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Covenants. (a) The Company Issuer covenants and agrees with the several Underwriters as follows:
Underwriter that it will (ai) If prepare and file the Initial Registration Statement has Prospectus Supplement with the Commission pursuant to Rule 424, (ii) not already been declared effective by file any amendment to the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus of which the Underwriter shall not previously have been advised and furnished with a copy or to which the Underwriter shall have reasonably objected in writing or which is not in compliance, in all material respects, 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 Underwriter.
(b) The Issuer has not distributed, and without the prior consent of the Underwriter it will not distribute, any prospectus or other offering material (including, without limitation, any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or otherwise constitute a Free Writing Prospectus required to be filed with the Commission 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). The Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer, it will not make, any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or otherwise constitute a free writing prospectus as defined in Rule 405 under the Securities Act and will not include any “issuer information” (as defined in Rule 433) in any free writing prospectus, except as has been disclosed in writing to the Issuer prior to the Applicable Time. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer and the Underwriter is listed on Schedule I 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, and the Underwriter has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Offering Participant 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 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 under which they were made, not misleading, the Issuer will give prompt notice thereof to the Underwriter and, if requested by the Underwriter, will prepare and furnish without charge to the 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 the Underwriter expressly for use therein, such information being listed in Section 12 below.
(c) The Issuer will advise the Underwriter promptly (i) when any post-effective amendment to the Initial Registration Statement has shall have become effective effective; (ii) of receipt of any comments from the Commission; (iii) of any request of the Commission for amendment of the Registration Statement or any for supplement to the Prospectus has been filed and of any request by the Commission or for any amendment or supplement to the Initial 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 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(iv) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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, Statement or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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 institution of any proceeding proceedings for any such that purpose; and the Company . The Issuer will promptly use its best commercially reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain its withdrawal as soon as possible the lifting thereof, 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.
(cd) The Issuer will cooperate with the Underwriter in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriter 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 or subject itself to taxation as doing business in any jurisdiction where it is not now subject to taxation or qualify as a dealer of securities in any jurisdiction where it is not now so qualified as a dealer of securities. 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 Underwriter may reasonably request for distribution of the Shares.
(Ae) Within The Issuer will deliver to, or upon the time order of, the Underwriter during which the period when delivery of a prospectus Prospectus is required (assuming or, but for the absence of exemption in Rule 172, would be required) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriter may reasonably request. The Issuer will deliver to the Underwriter at or before the Closing Date, a signed copy of the Registration Statement and hereafter amendedall amendments thereto including all exhibits filed therewith, and by will deliver to the Underwriter 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 Underwriter may reasonably request.
(f) The Issuer will comply with the Securities Act and the Rules and Regulations, as from time to time in forceand the Exchange Act, and the rules and regulations of the Commission thereunder, so far as necessary to permit the continuance completion of sales the distribution of or dealings in the Securities Shares as contemplated by the provisions hereof, the General Disclosure Package in this Agreement and the Prospectus. If during such the period in which a prospectus is required (or, but for the exemption in Rule 172, would be required) by law to be delivered by an Underwriter or dealer, any event occurs shall occur as a result of which the Prospectus (Prospectus, as then amended or if the Prospectus is not yet available to prospective purchaserssupplemented, the General Disclosure Package) would include an any untrue statement of a material fact or omit to state a any material fact act necessary in order to make the statements therein, in the light of the circumstances then existingunder which they were made, not misleading, or or, if during such period it is necessary at any time to amend or supplement the Prospectus to comply with the Securities Act or the Rules and Regulations, the Issuer promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus.
(g) The Issuer will make generally available to its security holders and the Underwriter, 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.
(h) The Issuer covenants and agrees that it will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the SEC a registration statement or amendment to a registration statement under the Securities Act relating to, any shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing for a period of 60 days after the date of this Agreement, directly or indirectly, otherwise than hereunder or with the prior written consent of the Underwriter; provided, that this provision will not restrict the Issuer from (i) issuances pursuant to the exercise of options outstanding on the date hereof, (ii) grants of employee stock options, restricted stock, restricted stock units, stock settled stock appreciation rights and other securities issuances pursuant to the terms of a plan in effect on the date hereof, (iii) issuances pursuant to the exercise or vesting of such options, restricted stock units, stock settled stock appreciation rights or other such securities, (iv) issuances to our employees under the terms of the employee stock purchase plan in effect on the date hereof, (v) issuances pursuant to the Issuer’s 401(k) plan, (vi) issuances to directors pursuant to the incentive plan in effect on the date hereof, (vii) the filing of registration statements on form S-8 and amendments thereto in connection with those securities and plans, (viii) the filing of amendments to the Issuer’s currently effective resale shelf registration statement and a new universal shelf registration statement, (ix) issuances pursuant to the exercise or conversion of the Issuer’s convertible notes, (x) the issuance of shares of common stock pursuant to the Issuer’s pledges to the University of Texas at Arlington, (xi) issuances of warrants, shares and shares underlying warrants pursuant to the Land Agreement described in the Issuer’s Annual Report form 10-K for the year ended December 31, 2009 and Quarterly Report on Form 10-Q for the quarter ended September 30, 2010, and (xii) the taking of any of the foregoing actions in connection with the issuance of shares or other securities as consideration for acquisitions or in the issuance of securities in private placements by the Issuer.
(i) The Issuer will use its best efforts to list, subject to notice of issuance, the Shares on The Nasdaq Stock Market.
(j) The Issuer shall apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus (or if and the Prospectus is not yet available to prospective investors, the General Disclosure Package.
(k) 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 Subsidiaries to comply with register as an investment company under the Securities 1940 Act, the Company .
(l) The Issuer will promptly notify you and will amend the Registration Statement or supplement the Prospectus (ormaintain a transfer agent and, if necessary under the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense jurisdiction of incorporation of the CompanyIssuer, a registrar for the Common Stock.
(m) so as The Issuer will not take, directly or indirectly, any action designed to correct such statement or omission that could reasonably be expected to cause or effect such complianceresult in stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Covenants. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(a) If During the Initial Registration Statement has not already been declared effective 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 CommissionUnderwriter 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 will use its best efforts shall furnish to cause the Initial Registration Statement Underwriter for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Underwriter or Prospectus or additional information; if counsel to the Company has elected Underwriter reasonably objects. Subject to rely on Rule 430A this Section 4(a), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Underwriter and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofUnderwriter, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byUnderwriter may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(b) The Company will advise youthe 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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) and 430A), 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) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 1 contract
Sources: Purchase Agreement (Nanosphere Inc)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If Both parties covenant and agree that they shall at all times during the Initial Registration Statement has not already been declared effective by term of this Agreement and thereafter so long as the CommissionLicensed Products are being commercialized, keep current all such party's obligations to its licensors with respect to any technology which is the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly subject matter of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingthis Agreement.
(b) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, Each 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 General 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; Corixa 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 CellPro covenants and agrees that it shall comply with the provisions of Rules 424(b) diligently and 430Ain good faith file, as applicable, under the Securities Act prosecute and will use its reasonable efforts to confirm that any filings made maintain all patents owned or controlled by the Company under Rule 424(b), Rule 433 such party and licensed or Rule 462 were received in a timely manner by the Commissionsublicensed hereunder.
(c) (A) Within the time during which Corixa covenants that it will use commercially reasonable efforts to obtain a prospectus (assuming the absence of Rule 172) relating license to the Securities is required Microsphere Technology (which will include a worldwide license, with rights to be delivered under sublicense, to make, have made, use, sell and have sold Licensed Products using the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General Disclosure PackageMicrosphere Technology) 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 investors, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify you and will amend Schedule 1.10 to include the Registration Statement Microsphere Technology by January 1, 1997. If Corixa fails to obtain such license on or supplement before January 1, 1997 (or any applicable extension date) then CellPro may, at its option, elect to terminate this Agreement by delivering written notice of termination to Corixa on or before January 31, 1997. If CellPro does not deliver such notice on or before January 31, 1997, this Agreement will continue in full force and effect, and Corixa will furnish, without charge to CellPro, services scheduled to be performed under the Prospectus Research Plan with a value of $200,000, and accordingly the amount of funding for the next quarterly payment under Section 2.2 will be reduced by $200,000. If CellPro delivers such notice on or before January 31, 1997, then this Agreement will terminate and (ori) each party will return Confidential Information of the other in accordance with Section 14.5; (ii) the licenses set forth in Section 3 will terminate; (iii) the parties' rights to the results of the Research Program through the date of termination will be determined under Section 8; (iv) neither party will have any further obligation under the Research Program or any obligation to make or refund any payment under this Agreement; and (v) such termination shall not relieve either party of any obligation accruing prior to such termination.
(d) Corixa covenants that it will use commercially reasonable efforts to ensure that the license to the Microsphere Technology permits CellPro to use the Microsphere Technology in Liquid Tumor Therapy (in addition to Solid Tumor Therapy) in the CellPro Field. If Corixa obtains the license described in Section 11.4(c), if but such license does not permit CellPro to use the Prospectus is Microsphere Technology in Liquid Tumor Applications on the 24 CellPro Field, and Corixa will furnish, without charge to CellPro, services scheduled to be performed under the Research Program with a value of $200,000, and accordingly the amount of funding for the next quarterly payment under Section 2.2 will be reduced by $200,000.
(e) Corixa covenants that it will obtain prior to July 1, 1996 amendments, modifications or waivers as reasonably required to ensure that this Agreement does not yet available conflict with or cause a breach of any of the license agreements listed on Schedule 6.2(a) under which Corixa has obtained licenses to prospective purchasersCorixa Technology from Dana ▇▇▇▇▇▇, ▇▇iversity of Pittsburgh, University of Washington/Washington Research Foundation and Roswell Park.
(f) Corixa will defend, and indemnify CellPro from any third party claims arising out of Corixa's financial obligations to existing third party licensors of Corixa Technology under the General Disclosure Packagelicense agreements listed on Schedule 6.2(a) (at the expense of the Company) so as to correct such statement e.g., royalty calculations and payment, net sales calculation, license or omission or effect such compliancesublicense fees, indemnification obligations, etc.
Appears in 1 contract
Sources: Research Collaboration and License Agreement (Corixa Corp)
Covenants. The Company covenants and 3.1 Mortgage Store agrees with that prior to the several Underwriters as followsClosing Date:
(a) If the Initial Registration Statement has not already been Except as set forth on Schedule 3.1, no dividend shall be declared effective or paid by the Commissionother distribution (whether in cash, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement stock, property or any post-effective amendment combination thereof) or payment declared or made in respect to the Initial Registration Statement has become effective Mortgage Store Shares, nor shall Mortgage Store purchase, acquire or redeem or split, combine or reclassify any supplement to the Prospectus has been filed and shares of any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 its capital stock unless prior to the filingrecord date for such dividend or the effective date of such split, combination or reclassification, it tenders to Little Creek its agreement to amend this Agreement so as to effect an appropriate adjustment in the number of shares deliverable upon the Closing Date.
(b) The Company will advise youNo change shall be made in the number of shares of authorized or issued Mortgage Store Shares; nor shall any option, promptly after it shall receive notice warrant, call, right, commitment or obtain knowledge thereof, of the issuance by the Commission agreement of any stop order suspending the effectiveness of the Registration Statement, character be granted or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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) 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)Mortgage Store relating to its authorized or issued Mortgage Store Shares; nor shall Mortgage Store issue, Rule 433 grant or Rule 462 were received in a timely manner by the Commissionsell any securities or obligations convertible into or exchangeable for shares of Mortgage Store Shares.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating Mortgage Store will not take, agree to the Securities is required take, or knowingly permit to be delivered under taken any action or do or knowingly permit to be done anything in the Securities Act by conduct of the business of Mortgage Store or otherwise, which would be contrary to or in breach of any Underwriter of the terms or dealer provisions of this Agreement, or which would cause any of Mortgage Store's representations contained herein to be or become untrue in any material respect at the Closing Date.
(the “Prospectus Delivery Period”d) Except as set forth on Schedule 3.1(d), the Company will use its best efforts to comply 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 occurs in the Securities ordinary course of business or as contemplated by the provisions Article I hereof, Mortgage Store will not (i) incur any indebtedness for borrowed money; (ii) assume, guarantee, endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for the General Disclosure Package and obligations of any other individual, firm or corporation, or (iii) make any loans, advances or capital contributions to or investments in, any other individual, firm or corporation in excess of $100,000, except with the Prospectus. If during such period consent of Little Creek which consent shall not be unreasonably withheld.
3.2 Little Creek agrees that prior to the Closing Date:
(a) No dividend shall be declared or paid or other distribution (whether in cash, stock, property or any event occurs combination thereof) or payment declared or made in respect of Little Creek Shares, nor shall Little Creek purchase, acquire or redeem or split, combine or reclassify any shares of its capital stock.
(b) Except as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasersset forth in Article 1 hereof, the General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, no change shall be made in the light number of authorized or issued Little Creek Shares (other than pursuant to this Agreement); nor shall any option, warrant, call, right, commitment or agreement (other than this Agreement) of any character be granted or made by Little Creek relating to its authorized or issued Little Creek Shares; nor shall Little Creek issue, grant or sell any securities or obligations convertible into or exchangeable for Little Creek Shares.
(c) Little Creek will not take, agree to take, or knowingly permit to be taken any action, nor do or knowingly permit to be done anything in the conduct of the circumstances then existingbusiness of Little Creek or otherwise, not misleadingwhich would be contrary to or in breach of any of the terms or provisions of this Agreement, or which would cause any of Little Creek's representations and warranties contained herein to be or become untrue in any material respect at the Closing Date including without limitation amending Little Creek's charter documents and By-laws, except as otherwise provided herein.
(d) Except as contemplated by Article I, Little Creek will not (i) incur any indebtedness for borrowed money; (ii) assume, guarantee, endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other individual, firm or corporation; or (iii) make any loans, advances or capital contributions to or investments in, any other individual, firm or corporation.
(e) Little Creek will not make, alter or change any employment or other contract with any of its management personnel or make, adopt, alter, revise, or amend any pension, bonus, profit-sharing or other employee benefit plan, or grant any salary increase or bonus to any person without the prior written consent of Mortgage Store which consent may be withheld in its sole discretion.
3.3 Each party to this Agreement agrees that the fair market value of the Little Creek Shares received by the Mortgage Store Stockholder pursuant to this Agreement will be approximately equal to the fair market value of the Mortgage Store Shares surrendered by such Mortgage Store Stockholder in the exchange.
3.4 All shares of Little Creek issued pursuant to an S-8 registration statement shall not be resold by the holders for a period of 90 days following the Closing. Mortgage Store shall in no way be responsible for the required registration of any of the aforementioned shares or to cause such shares to become transferable under Rule 144 if during such period it is necessary subsequently determined that such shares are not otherwise resalable pursuant to amend the Registration Statement Rule 144 or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceotherwise.
Appears in 1 contract
Sources: Plan of Reorganization and Stock Exchange Agreement (Little Creek Inc)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If On or before 9:00 a.m., New York time, on the Initial Registration Statement has not already been declared effective by first (1st) Business Day following the Commissiondate of this Agreement, the Company will shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated hereby (the “8-K Filing”) in the form required by the Securities Exchange Act of 1934, as amended (the “1934 Act”). From and after the issuance of the 8-K Filing, the Company shall have disclosed all material, non-public information (if any) delivered to the Holder by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated hereby.
(b) In the event that the Holder is deemed, in the Holder’s reasonable judgment, to be an “affiliate” of the Company within the meaning of Rule 144, the Company shall use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the CommissionSEC a Registration Statement on Form S-1 (or in its discretion on Form S-3) relating to the resale of such Registrable Securities by the Holder on a continuous basis no later than 30 days after the Holder’s written demand (the “Filing Deadline”). The Company shall cause the Registration Statement filed pursuant to this Section 7(b) to become effective as soon as reasonably practicable after such filing, but in no event later than 60 days after the Filing Deadline) and promptly upon your requestafter such Registration Statement has been declared effective, file a final prospectus to be used for sales of the Registrable Securities in connection with such Registration Statement in accordance with Rule 424 under the 1933 Act (the “Prospectus”). The Company shall use its best efforts to keep the Registration Statement effective pursuant to Rule 415 at all times until the date on which the Investors shall have sold all of the Registrable Securities (the “Registration Period”), including, without limitation, by filing any necessary amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Statement. The Company will furnish the Representatives and counsel for the Underwriters a copy of shall ensure that any proposed amendment or supplement to the Registration Statement and/or Prospectus filed pursuant to this Agreement (including any amendments or Prospectus supplements thereto and will prospectuses contained therein) shall not file contain 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 any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements thereintherein (in the case of prospectuses, in the light of the circumstances then existing, in which they were made) not misleading. For purposes hereof, “Registrable Securities” means (i) the Underlying Shares, (ii) any outstanding shares of common stock owned by the Holder or if during such period it is necessary to amend any of its affiliates, (iii) any shares of common stock issuable upon the Registration Statement conversion or supplement exercise of warrants, options or convertible securities (including the Prospectus (or if the Prospectus is not yet available to prospective investorsSeries C-2 Preferred Stock, the General Disclosure PackageSeries D Preferred Stock and Series E Preferred Stock) to comply with the Securities Act, of the Company will promptly notify you owned by the Holder or any of its affiliates and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Packageiv) (at the expense and any other shares of common stock of the Company) so Company issued in respect or replacement of any of the foregoing securities (as to correct such statement a result of stock splits, stock dividends, stock combinations, reclassifications, recapitalizations or omission or effect such complianceother similar events).
Appears in 1 contract
Covenants. (a) The Company covenants Offerors jointly and agrees severally covenant and agree with the several Underwriters Underwriter as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you the Underwriter promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); the Company Offerors will prepare and file with the Commission, promptly upon your the Underwriter's 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, based on in the advice of counselUnderwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution of the Securities by the UnderwritersCapital Securities; and the Company will furnish the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement to the Registration Statement or Prospectus and Offerors 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 the Underwriter shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(bii) The Company Offerors will advise youthe Underwriter, promptly after it they 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 General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company Offerors will promptly use its their 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.
(c) (Aiii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Capital Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company Offerors will use its best efforts to 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 Capital Securities as contemplated by the provisions hereof, the General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities Act, the Company Offerors will promptly notify you the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iv) The Offerors will use their best efforts to qualify the Capital Securities, the Junior Subordinated Debentures and the Guarantee for sale under the securities laws of such jurisdictions as the Underwriter may reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Capital Securities, except that the Offerors 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.
(v) The Offerors will furnish to the Underwriter copies of the Registration Statement (three of which will be signed and will include all exhibits), each of the Preliminary Prospectuses, the Prospectus, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case as soon as available and in such quantities as the Underwriter may from time to time reasonably request.
(vi) 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 stockholders of the Company and all information, documents and reports filed with the Commission.
(vii) The Company will make generally available to its security holders and holders of the Capital Securities 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 (including transfer taxes allocated to the respective transferees) incident to the performance of the obligations of each Offeror under this agreement, (B) all expenses and fees (including, without limitation, fees and expenses of each Offeror'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 Capital 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 Capital 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, (D) the fees and expenses of any transfer agent or registrar, (E) the filing fees incident to any required review by the National Association of Capital Securities Dealers, Inc. ("NASD") of the terms of the sale of the Capital Securities, (E) listing fees, if any, (G) the fees and expenses of the Indenture Trustee, including the fees and disbursements of counsel for the Indenture Trustee in connection with the Indenture and Junior Subordinated Debentures, (H) the fees and expenses of the Property Trustee, including the fees and disbursements of counsel for the Property Trustee in connection with the Trust Agreement and the Certificate of Trust, and (I) all other costs and expenses incident to the performance of the Offerors' obligations hereunder that are not otherwise specifically provided for herein. If the sale of the Capital Securities provided for herein is not consummated by reason of action by either Offeror 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 either Offeror 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 either Offeror 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 Capital Securities or in contemplation of performing their obligations hereunder. Neither Offeror shall in any event be liable to the Underwriter for loss of anticipated profits from the transactions covered by this Agreement.
(ix) The Offerors will apply the net proceeds from the sale of the Capital Securities to be sold by the Trust hereunder for the purposes set forth in the Prospectus and will file such reports with the Commission with respect to the sale of the Capital Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 of the Rules and Regulations.
(x) The Offerors have 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 either Offeror to facilitate the sale or resale of the Capital 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.
(xi) Neither Offeror will 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.
(xii) The Offerors will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Capital Securities by the Underwriter if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information will be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Sources: Purchase Agreement (GBB Capital I)
Covenants. The Company Recipient covenants and agrees with the several Underwriters as followsthat:
(a) If it is solely responsible for providing or obtaining the Initial Registration Statement funding, in addition to the Contribution, required to carry out the Project and the fulfilment of the Recipient’s other obligations under this Agreement;
(i) No Material Change within the control of the Recipient and, if the Recipient is a private company, no Change of Control will be made without the prior written consent of the Minister. Notice of such Material Change or Change of Control must be delivered promptly to the Minister and in no event later than thirty (30) days prior to the proposed Material Change or Change of Control;
(ii) In the case where the Recipient is a public company, the Recipient shall notify the Minister in writing of any Change in Control no later than thirty (30) days following any Change in Control, and as a result of such Change in Control, the Minister may, at the Minister’s discretion, terminate the Agreement and may require that the Recipient pay to the Minister up to the Maximum Amount to be Repaid;
(c) it shall retain possession and control of all Project Assets the cost of which has not already been declared effective contributed to by the CommissionMinister under the Agreement, and the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly Recipient shall not Dispose of the time when same without the Initial Registration Statement or any postprior written consent of the Minister, other than (i) in the ordinary course of business where the aggregate book value of such Project Assets for each occurrence is no greater than twenty-effective amendment five thousand dollars ($25,000), and (ii) where the Maximum Amount to the Initial Registration Statement has become effective or any supplement to the Prospectus be Repaid has been filed and of any request by the Commission for any amendment or supplement to the Initial 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 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 paid in accordance with the provisions ofthis Article 10;
(d) it shall, Rules 424(b) in advance 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byin writing, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements subject to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.
Paragraphs 10.2 (b) The Company will advise youand (c) of this Agreement, promptly after notify the Minister in the event of any Acquisition or Divestiture. In the case where the Recipient is a public company, the Recipient shall notify the Minister in writing of any Acquisition or Divestiture within 2 business days following any press release, or filing of a public regulatory notice in respect of such Acquisition or Divestiture;
(e) that it shall receive notice not make any dividend payments or obtain knowledge thereof, other shareholder distributions that would prevent it from implementing the Project or satisfying any other of the issuance by the Commission of any stop order suspending the effectiveness of the Registration StatementRecipient’s obligations under this Agreement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectusincluding, without limitation, the General Disclosure Package, making of repayments to 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 Minister hereunder;
(f) 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 federal visibility requirements set out in a timely manner by the Commission.Schedule 2 - Communications Obligations; and
(cg) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to it shall comply with all requirements imposed upon it by the Securities Act, as now laws and hereafter amended, and by the Rules and Regulations, as from time regulations applicable 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceit.
Appears in 1 contract
Sources: Strategic Innovation Fund Agreement (Spire Global, Inc.)
Covenants. (a) The Company further covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the The Company will notify you promptly of (A) the date and time when the Initial Registration Statement or any post-effective amendment to the Initial Original Registration Statement has been filed or has become effective effective, (B) the date and time when any amendment or any supplement to any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus has been filed and (C) the receipt of any comments of or any request by the Commission for any amendment or amendment, supplement to the Initial Registration Statement or Prospectus or additional informationinformation from, the Commission; if the Company has elected to rely on Rule 430A 430B of the Rules and Regulations, the Company will prepare and file a Prospectus containing the information omitted therefrom pursuant to Rule 430A 430B of the Rules and Regulations with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules Rule 424(b) and 430A Rule 430B 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counselcounsel of the Company or the Underwriters, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel for the Underwriters Underwriters, a reasonable period of time prior to the proposed time of filing, 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. The Company shall file with the Commission within the applicable period specified in Rule 424(b) under the Act any prospectus required to be filed pursuant to such Rule.
(bii) 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, Statement or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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, of any proceedings to remove, suspend or terminate from listing or quotation any securities of the Company from any securities exchange upon which they are listed for trading or included or designated for quotation, 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 at the earliest possible moment if such a stop order should be issued. Additionally, the Company agrees that it shall comply with the provisions of Rules Rule 424(b) and 430ARule 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.
(ciii) (A) Within the time during which a prospectus (assuming whether physically or through compliance with Rule 172 under the absence of Rule 172Act or any similar rule) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts effort to comply 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, the General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs or condition exists as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure PackageTime of Sale 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 (or if the Prospectus is not yet available to prospective investors, the General Disclosure PackageTime of Sale Prospectus) to comply with the Securities Act, the Company will promptly notify you and you, will promptly amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure PackageTime of Sale Prospectus) (at the expense of the Company) and will furnish to the Underwriters and to any dealer upon request, either amendments to the Registration Statement or supplements to the Prospectus (or if the Prospectus is not yet available to prospective investors, the Time of Sale Prospectus) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Sources: Underwriting Agreement (Acelrx Pharmaceuticals Inc)
Covenants. The Company (a) Each Issuer covenants and agrees that it will (i) use commercially reasonable efforts to commence the 2022 Exchange Offer and the 2022 Consent Solicitation by March 20, 2020 and conduct the 2022 Exchange Offer and the 2022 Consent Solicitation in accordance with the several Underwriters Term Sheet, (ii) provide PW (as follows:
defined below), in its capacity as outside counsel to the Noteholder Parties, a reasonable period of time (aand not less than five (5) If Business Days in the Initial Registration Statement has not already been declared effective by case of the Commissioninitial draft) to review and comment on drafts of (x) the Offering Memorandum, prior to the Company will commencement of the 2022 Exchange Offer and the 2022 Consent Solicitation, and (y) the New Indenture, prior to the Settlement Date, and (iii) use its best commercially reasonable efforts to cause the Initial Registration Statement conditions to the 2022 Exchange Offer and any post-effective amendments thereto the 2022 Consent Solicitations set forth in the Offering Memorandum to become effective be satisfied as promptly as possible; the Company will notify you promptly practicable. The Noteholder Parties acknowledge and agree that nothing in this Agreement shall (x) require any Issuer to amend, modify or waive any of the time when the Initial Registration Statement terms or any post-effective amendment to the Initial Registration Statement has become effective conditions of, or any supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsextend, the Company will prepare and file a Prospectus containing 2022 Exchange Offer or the information omitted therefrom pursuant 2022 Consent Solicitation, (y) subject 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(bclause (i) of the Rules preceding sentence and Regulations to increase the size termination right set forth in Section 8(a)(ii)(E), restrict any amendment, modification or waiver of the offering 2022 Exchange Offer or the 2022 Consent Solicitation, or (z) restrict the termination of the 2022 Exchange Offer or 2022 Consent Solicitation if any of the conditions thereto have not been satisfied notwithstanding compliance with clause (iii) of the preceding sentence.
(b) Each Issuer covenants and agrees that (i) the New Notes and guarantees thereof will be issued pursuant to and in compliance with an applicable exemption or exemptions from registration under the Securities Act and (ii) the 2022 Exchange Offer will comply in all material respects with all applicable provisions of Section 14(e) of the Exchange Act and Regulation 14E thereunder.
(c) Each Noteholder Party covenants and agrees that it will not sell any of the New Notes to be received by such Noteholder Party pursuant to this Agreement unless such sale has been registered under the Securities Act and applicable state securities laws or an exemption from registration is available for such sale.
(d) If any Noteholder Party instructs the Rule 462(bIssuers to register New Notes in the name of a person other than such Noteholder Party, such Noteholder Party will be responsible for the payment of any transfer, documentary, court, stamp or similar taxes (“Transfer Taxes”) Registration Statement has not yet been filed imposed with respect to the tender of the Existing 5.750% 2022 Notes. In addition, if Transfer Taxes are imposed for any reason other than the transfer and become effectivetender to the Issuers, the Company amount of those Transfer Taxes, whether imposed on any Noteholder Party or any other person, will prepare be payable by the applicable Noteholder Party or Parties.
(e) The Issuers shall be entitled to deduct and file 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 Rule 462 Registration Statement exchange of the Existing Notes for the New Notes. To the extent such amounts are 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 whom such deduction and withholding was made.
(f) If, during the term of this Agreement, any Issuer enters into an agreement with a holder of any Existing Notes (other than an agreement with all of the Noteholder Parties) that entitles such holder to exchange its Existing Notes of any series for an aggregate principal amount of New Notes that is greater than the consideration for such series of Existing Notes contemplated by the Term Sheet, or for consideration other than New Notes, the Issuers shall (i) on the date such agreement is entered into, inform the Noteholder Parties’ of their entry into such agreement, the terms thereof and the parties thereto, and (ii) at the election of the Noteholder Parties, in their sole discretion, amend this Agreement to provide the Noteholder Parties with the Commission within opportunity to exchange their Existing Notes of such series for the time period required bysame proportionate mix of consideration (subject to the same proportionate proration and/or cap, if applicable) as agreed with such other holder(s) for the applicable series of Existing Notes.
(g) Each Noteholder Party, in its capacity as a holder of Existing 4.875% 2020 Notes, irrevocably agrees and otherwise consents to the adoption of the amendment (the “Amendment”) to the Existing 4.875% 2020 Notes and the indenture governing the Existing 4.875% 2020 Notes (the “2020 Indenture”) described on Annex I hereto.
(h) The Mallinckrodt Parties covenant and agree that, on the date hereof and on the Settlement Date, they shall pay (or cause to be paid) all then-outstanding reasonable and documented fees and expenses of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel to the Noteholder Parties (“PW”), in each case in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution terms of the Securities by the Underwriters; letter agreement, dated as of February 12, 2020, between Mallinckrodt Parent and the Company will furnish the Representatives 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 filingPW.
(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 any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective Executive agrees that he shall continue to be bound by the Commission, the Company will use its best efforts to cause the Initial Registration Statement terms and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly conditions of the time when covenants set forth in Section 10 of the Initial Registration Statement or any postSeverance Agreement relating to confidentiality and non-effective amendment solicitation. Executive hereby agrees to promptly return all Confidential Information (as defined in the Severance Agreement) pursuant to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed terms and conditions of any request by the Commission for any amendment or supplement to the Initial 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 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(bSection 10(a) of the Rules Severance Agreement. Executive and Regulations Company agree to increase execute the size Consulting Agreement Release as of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice date of counsel, may be necessary or advisable in connection with the distribution termination of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingconsultancy hereunder.
(b) The Company will advise youExecutive agrees that he shall not sell, promptly after it shall receive notice make any short sale of, loan, grant any option for the purchase of, or obtain knowledge thereofotherwise dispose of any securities of Company, however or whenever acquired, prior to January 1, 2016 (the period expiring on such date, the “Lock-Up Period”), other than pursuant to his 10b5-1 trading plan existing as of the issuance Effective Date (the “Existing Trading Plan”); provided, that, nothing in this clause (b) shall restrict Executive from entering into a new or additional 10b5-1 trading plan (a “Trading Plan”) in compliance with the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Compliance Policy of Company attached hereto as Exhibit G (as the same may be amended, modified or supplemented from time to time, the “Policy”) for dispositions of securities of Company following expiration of the Lock-up Period, the terms and conditions of which shall be subject to prior review and approval by the Commission of any stop order suspending the effectiveness Board (such approval not to be unreasonably withheld). Following expiration of the Registration StatementLock-Up Period, or any post-effective amendment thereto or preventing or suspending the use Executive may dispose of any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, securities of the suspension of the qualification of the Securities for offering or sale Company 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 compliance 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 CommissionPolicy.
(c) (A) Within Executive acknowledges that, pursuant to Section IV.C of the time during which a prospectus (assuming Policy, he will remain subject to the absence Policy following termination of Rule 172) any services to Company for so long as he is in possession of material non-public information relating to Company or its business. Further, in light of Executive’s unique knowledge of Company and its business and his continuing role at Company pursuant to the Securities consulting arrangement under this Separation Agreement, Executive agrees that during the Consulting Period, until such time as he and the Board mutually agree that Executive is required no longer in possession of material non-public information relating to be delivered Company or its business, neither he nor persons or entities associated with him will undertake any transactions in securities of Company outside of a Trading Plan approved by the Board in accordance with Paragraph 7(b) hereof or the Existing Trading Plan.
(d) Subject to compliance with applicable law and the terms and conditions of that certain Amended and Restated Investor Rights Agreement, dated as of April 16, 2014 (the “Rights Agreement”), by and among Company and certain investors identified therein, Company agrees, following expiration of the Lock-Up Period, to cause the removal of the restrictive legends referenced in Section 2.1(c) of the Rights Agreement from restricted shares of Company common stock beneficially owned by Executive; provided, that, Executive or the record holder of such shares will (i) execute and deliver to Company a letter of representations and warranties in form and substance reasonably satisfactory to Company, including, without limitation, representations and warranties affirming Executive’s non-affiliate status at that time and other matters relating to compliance with Rule 144 under the Securities Act of 1933, as amended, (ii) a copy of the relevant stock certificate(s) or a current account or book-entry statement evidencing possession of the relevant shares, and (iii) such other documents or instruments as Company or its transfer agent or counsel may reasonably request.
(e) Executive agrees that Executive shall not, directly or indirectly, communicate with any current or former employee of Company regarding any Company business, other than with Company’s interim or permanent Chief Executive Officer or members of Company’s Board of Directors or as otherwise directed by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancepersons.
Appears in 1 contract
Sources: Separation Agreement (Avalanche Biotechnologies, Inc.)
Covenants. The Company hereby covenants and agrees with the several Underwriters Bank that for so long as follows:
(a) If any Secured Amount remains outstanding: the Initial Registration Statement has not already been declared effective Company will deposit with the Bank all bills of lading or other documents of title relating to Goods and all shipping documents, transport documents, delivery orders, warehouse warrants, certificates or receipts and all other documents relating to the Goods to the intent that the same shall be pledged to the Bank independently of this Deed and if required by the CommissionBank, the Company will use its best efforts in addition, deliver possession (actual, constructive or otherwise) of the Goods to cause the Initial Registration Statement Bank, and any post-effective amendments thereto to become effective as deposit with the Bank an original duly executed copy of all Relevant Documents promptly as possibleupon the same being made; the Company will notify you promptly perform all and comply with its obligations under the Relevant Documents, this Deed and the Facility Letter, and take all necessary or advisable steps to remedy any breach and to secure the due performance by each counterparty of its obligations under each Relevant Document; the Company shall not, without the prior written consent of the time when the Initial Registration Statement or Bank, agree to any post-effective amendment variation to the Initial Registration Statement has become effective terms and conditions of each Relevant Document; or waive any supplement of its rights thereunder, or waive any breach, or release the counterparties to the Prospectus has been filed Relevant Documents from any of their obligations thereunder; or consent to any act of the counterparties as would otherwise constitute such a breach under the Relevant Documents; or exercise any right or power conferred on to it by any Relevant Document in a manner which is in the Bank’s opinion, adverse to the interests of the Bank under this Deed; the Company will immediately notify the Bank in writing after becoming aware: of any default or breach by the counterparties of their obligations under any Relevant Document and of any request by arbitration, litigation or other proceeding commenced or threatened, in respect thereof; and of the Commission for happening of any amendment or supplement event tending to affect the Initial Registration Statement or Prospectus or additional informationrepresentations and warranties contained in Clause 5 including any dispute arising out of any Relevant Document; if the Company has elected will not assert the doctrine of frustration or agree to rely on Rule 430A any such assertion to render any Relevant Document void or terminate any Relevant Document by electing to treat a breach by any counterparty as a repudiation of the Rules and RegulationsRelevant Document without the prior written consent of the Bank; save as provided in this Deed, the Company will prepare not (and file will not agree, conditionally or unconditionally, to), and shall not threaten, purport or agree to, assign, charge, pledge, sell, lend, transfer or otherwise dispose or create or encumber or have outstanding, any Security Interest over any of its rights, benefits, title and interest in the Charged Property and any attempt to do so shall be void; the Company will forthwith send to the Bank a Prospectus containing copy of all notices received or given by it under the Relevant Documents and any other information omitted therefrom pursuant as required by the Bank; the Company shall not create or permit to Rule 430A exist any equities between any of the Rules counterparties or any other parties whatsoever and Regulations itself which may be or will be of detriment to the Bank; (unless approved by the Bank in writing) the Company shall not withdraw or attempt to withdraw or deal with or agree, conditionally or unconditionally, to deal with any of the Commission within Charged Property or purport or attempt to do any act or thing which any in any way delay or prejudice the right of the Bank under this Deed; the Company will not take or omit to take any action the taking and omission of which may result in an alteration or impairment of this Deed or of any of the rights created hereby; the Company will do or permit to be done each and every act or thing which the Bank may from time period to time require to be done for the purpose of enforcing the Bank’s rights under this Deed and allow its name to be used as and when required byby the Bank for that purpose; the Bank may at any time issue and send to a counterparty to any Relevant Document a notice of the assignment created by this Deed, substantially in the form set out in the Appendix hereto or in such other form as the Bank may require, and otherwise the Bank may carry out such actions to perfect the security created or intended to be created by this Deed in accordance with the provisions of, Rules 424(blaws of any jurisdiction which the Bank considers relevant including without limitation: (i) and 430A the jurisdiction by the laws of which any Charged Property is (whether by virtue of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b) terms of the Rules document or instrument constituting or evidencing the same or otherwise) governed or construed; and Regulations (ii) the jurisdiction in which the counterparty to increase the size that Relevant Document in respect of the offering registered under the Securities Act and the Rule 462(b) Registration Statement has not yet been filed and become effective, any Charged Property is treated as being situated; the Company will prepare take out and file maintain such insurances in respect of the Rule 462 Registration Statement Charged Property in names, on terms and with insurers acceptable to the Commission within Bank as the Bank may from time period required byto time require, and otherwise in accordance with to produce to (or, if required, deposit with) the provisions of, Rule 462(b) Bank on demand all or any of the relevant policies and the Securities Actreceipts for the last premiums payable thereunder, and to hold any moneys payable to or received by the Company under any insurance upon trust to be applied either towards the replacement of the Charged Property in respect of which the moneys are received or (as the Bank may require) towards discharging the Secured Amounts, provided that the Company shall not (unless requested by the Bank) effect any further insurance against any risk where an insurance has already been effected therefor; the Company will allow the Bank and to procure that the Bank (and any persons appointed in writing by the Bank) shall have full access to the Goods to carry out any survey or inspection; the Company will allow the Bank and/or any representative(s) of or person(s) nominated by the Bank to have access at all reasonable times to the Borrower’s premises to inspect or audit any books, records, information or other data held by the Borrower in relation to the Goods and/or the Goods Agreements; the Company will not (whether by a single transaction or a number of related or unrelated transactions and whether at one time or over a period of time) sell, transfer, lease out, lend or otherwise dispose of (whether outright, by a sale-and-repurchase or sale-and-leaseback arrangement, or otherwise) all or substantially all of its assets or of any part of its assets which, either alone or when aggregated with all other disposals required to be taken into account under this clause, is substantial in relation to its assets; the Company will prepare the financial statements referred to in the Facility Letter in accordance with Current Accounting Principles and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution those financial statements shall give a true and fair view of the Securities by results of the Underwritersoperations of the Company for the period in question and the state of its affairs for the period to which the financial statements are made up and shall disclose or reserve against all the liabilities (actual or contingent) of the Company; and the Company will furnish the Representatives ensure that all margin deposits and counsel for the Underwriters a copy of sale proceeds and other monies which may at any proposed amendment time be received or supplement collected by or payable to the Registration Statement Company in respect of a Relevant Document be paid and credited into an account or Prospectus accounts maintained with the Bank; the Company will channel or conduct through the Bank all banking transactions (including foreign exchange and bills transactions) involving purchase of Goods financed out of the proceeds of the banking facilities unless otherwise agreed to by the Bank; the Company will not file any amendment or supplement to the Registration Statement or Prospectus to which you shall reasonably object by give immediate notice to the Bank of any change of registered address or principal business address of the Company; the Company after having been furnished a copy a reasonable time will not, without the prior written consent of the Bank, make any substantial changes to the filing.
nature of its business; the Company will supply to the Bank as and when required by the Bank certified copies of all resolutions passed at the meetings of the Company’s shareholders and board of directors within seven (7) days from the date of the passing of such resolutions; and where the Goods have been pledged to the Bank and are to be delivered or handed over by the Bank to the Company, they shall be received by the Company only (a) against the delivery by the Company of trust receipts (in accordance with the Bank’s normal practices and in the form as may be required by the Bank), (b) The as trustee and agent of the Bank, and if the Company will advise youshall receive any proceeds therefrom, promptly after it shall receive notice or obtain knowledge thereofsuch proceeds on trust for, and as agent of, the Bank and not otherwise. In Clause 6.1 above, where the prior written consent of the issuance Bank is required, such consent may be withheld by the Commission of any stop order suspending Bank at the effectiveness of Bank’s absolute discretion without the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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) 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is Bank being required to be delivered under the Securities Act by provide any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancereason therefor.
Appears in 1 contract
Sources: Deed of Charge and Assignment
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial Registration Statement or the 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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 Securities Act); the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or the Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) that, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (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 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 General 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) 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.
(c) (Aii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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, the General Disclosure Package hereof and the Prospectus. If during such period any event occurs as a result of which in the opinion of counsel for the Company or of counsel for the Underwriters the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 in the opinion of counsel for the Company or of counsel for the Underwriters necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities Act, the Company will promptly notify you and will forthwith amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iii) The Company will use its best efforts to qualify 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 not be required
Appears in 1 contract
Covenants. (a) The Company Borrower hereby expressly covenants and agrees that the Purchase Price shall be used (i) to pay, contemporaneously with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the CommissionClosing, the Company will use its best efforts to cause the Initial Registration Statement fees and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly expenses of the time when the Initial Registration Statement or any post-effective amendment Borrower relating to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed offer, sale and of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A issuance of the Rules Note and Regulations, 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(ii) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filinggeneral corporate purposes.
(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 any Preliminary Prospectus, the General 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) 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[Reserved].
(c) The Borrower shall have made satisfactory progress towards a transaction or series of potential transactions (Aincluding (i) Within a sale of all or substantially all of the time during which Borrower and its Subsidiaries, taken as a prospectus whole, (assuming ii) a junior debt or equity investment to fund the absence operations of Rule 172the Borrower and its Subsidiaries and (iii) relating an alternative transaction) that are acceptable to the Securities Holder, in the Holder’s sole but reasonable determination.
(d) On or prior to 11:59 p.m., New York City time on December 22, 2023, the Borrower shall have filed with the Commission its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023.
(e) For so long as the Note is outstanding, the Borrower shall provide the Holder with a rolling 13-week cash flow forecast, commencing on the December 11, 2023 and updated on a weekly basis.
(f) The Borrower shall, by 5:00 p.m., New York City time, on the second (2nd) Business Day immediately following the date of this Subscription Agreement, issue one or more press releases or file with the Commission a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, all material terms of the Transactions and any other material, non-public information that the Borrower has provided to the Holder at any time prior to the filing of the Disclosure Document. Upon the issuance of the Disclosure Document, to the Borrower’s knowledge, the Holder shall not be in possession of any material, non-public information regarding the Borrower received from the Borrower or any of its officers, directors, or employees or agents, and the Holder shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with the Borrower, or any of its respective affiliates in connection with the Transactions. Notwithstanding anything in this Subscription Agreement to the contrary, the Borrower shall not publicly disclose the name of the Holder or any of its affiliates or advisers, or include the name of the Holder or any of its affiliates or advisers in any press release or in any filing with the Commission or any regulatory agency or trading market, without the prior written consent (including by electronic mail) of the Holder, and shall omit or redact such Holder’s signature page to omit its name and any other identifying information in any such press release or filing except (i) to the extent required by the federal securities laws, rules or regulations (subject to Commission request as provided in clause (ii) in the case of federal securities laws), (ii) to the extent such disclosure is required by other laws, rules or regulations, in each case, at the request of the staff of the Commission or regulatory agency or under NYSE regulations or (iii) to be delivered under the Securities Act by any Underwriter extent such announcements or dealer other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 5(f) ; provided that, in the case of (the “Prospectus Delivery Period”i) and (ii), the Company Borrower shall provide the Holder with reasonable prior written notice of such permitted disclosure, and shall reasonably consult with the Holder regarding such disclosure. The Holder will use its best efforts to comply with all requirements imposed upon it promptly provide any information reasonably requested by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time Borrower or any of its affiliates for any regulatory application or filing made or to time be made or approval sought 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 General 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 General 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 investors, the General Disclosure Package) to comply connection with the Securities Act, Transactions (including filings with 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceCommission).
Appears in 1 contract
Sources: Incremental Super Priority Note Subscription Agreement (Getaround, Inc)
Covenants. The Company covenants and (a) Until the termination of this Agreement in accordance with Section 7, Stockholder agrees with the several Underwriters as follows:
(ai) If At any meeting of stockholders of the Initial Registration Statement has not already been declared effective 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 CommissionCompany 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) unless, within 14 days after the staff of the SEC has indicated to the Company that it either (i) will not review the Proxy Statement or (ii) (if the Proxy Statement is reviewed) has no further comments, the Company will use its best efforts has not mailed the Proxy Statement to cause the Initial Registration Statement 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 any post-effective amendments thereto to become effective as promptly as possible; no such proxy is given) if a Takeover Proposal has been made and the Board of Directors of the Company will notify you promptly (or the Special 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 time when Merger Agreement or (ii) considering in accordance with Section 4.2(b) of the Initial Registration Statement or any post-effective amendment Merger Agreement whether to terminate the Initial Registration Statement has become effective or any supplement Merger Agreement pursuant to the Prospectus has been filed 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 of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; effect if the Company has elected to rely on Rule 430A of the Rules and Regulations, 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 Merger Agreement is amended or otherwise modified in accordance with the provisions 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 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, Rules 424(b) and 430A the Subject Shares to any person other than pursuant to the terms of the Rules and Regulations; if the Company has elected Merger, except that Stockholder shall be permitted to rely upon Rule 462(b) Transfer all or a portion of the Rules Subject Shares to any of its Affiliates, including any direct or indirect wholly owned subsidiary, on the terms set forth in Section 6 of this Agreement, (B) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Alternative Transaction or (C) convert any shares of Company Class A Common Stock into shares of Company Class B Common Stock.
(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 Regulations to increase do, or cause to be done, and to assist and cooperate with the size other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. Without in any way limiting the foregoing sentence, and in full consultation with Parent, Stockholder shall use all reasonable efforts to provide, or cause its own parents, affiliates and its and their directors, officers and employees to provide, in the most expeditious manner practicable, any data, documents or other sources of information that are requested voluntarily or required by the U.S. Department of Justice, the Federal Communications Commission, the European Commission or any other Governmental Entity in order to complete at as early an investigative stage as possible each such Governmental Entity’s evaluation and clearance of the offering registered transactions contemplated in the Merger Agreement.
(vi) Stockholder shall not exercise any right that it may have under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments Section 3 or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution 4 of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filing1999 Stockholders’ Agreement.
(b) The Company will advise youIn consultation with Parent, promptly after it Stockholder 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 General 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; its commercially reasonable efforts to provide Parent and the Company will promptly use its best efforts any relevant information that is not commercially sensitive (including through access to prevent the issuance of any stop order or relevant employees) to obtain its withdrawal if such a stop order should be issued. Additionally, assist Parent and the Company agrees in resolving any investigation or other inquiry or proceeding initiated by any Governmental Authority or private party with respect to the Stockholder’s operations that it shall comply relate to the Company or with respect to the provisions of Rules 424(bCompany’s operations in any country with respect to which there is a Country Representative Agreement in effect between the Stockholder (or any controlled Affiliate) 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(or any Affiliate). For purposes of this Agreement, Rule 433 or Rule 462 were received in Country Representative Agreement means any agreement between the Company, on the one hand, and a timely manner by the CommissionCountry Representative.
(c) Stockholder agrees to negotiate in good faith with Parent and if applicable the Company with respect to Stockholder’s commercial relationship with the Company including, without limitation, with respect to interconnection between the Company Network and the Parent Network and with respect to any physical migration of the Company’s core bandwidth, customer access circuits and customers to the Parent Network. For purposes of this Agreement, Company Network shall mean the network managed, owned and operated by the Company or used by Stockholder in support of the Company’s products and services; and Parent Network shall mean the network managed, owned and operated by Parent.
(d) (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(d)(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 $35.0 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 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(d), the Profit of Stockholder from any Alternative Transaction shall equal (A) Within the time during which a prospectus aggregate consideration received by Stockholder pursuant to such Alternative Transaction, valuing any non-cash consideration (assuming including any residual interest in the absence Company) at its fair market value on the date of Rule 172such consummation, plus (B) relating 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 Securities is required date of such consummation, less (C) the fair market value of the aggregate consideration that would have been issuable or payable to be delivered under Stockholder if it had received the Securities Act by 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 Underwriter or dealer 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 “Prospectus Delivery Period”Original Merger Consideration), Stockholder shall pay to Parent on demand an amount in cash equal to the Company will use its best efforts to comply with all requirements imposed upon it by product of (i) the Securities Actnumber of Subject Shares of Stockholder and (ii) 100% of the excess, if any, of (A) the per share cash consideration or the per share fair market value of any non-cash consideration, as now and hereafter amendedthe case may be, and received 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 General Disclosure Package and the Prospectus. If during such period any event occurs Stockholder as a result of which the Prospectus 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(d), 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 be 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(d)(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, however, that if the Prospectus is not yet available parties are unable to prospective purchasersagree within two Business Days after the date of such event as to such investment banking firm, then the General Disclosure Packageparties shall each select one firm, 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) would include 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 all of the consideration received by Stockholder in an untrue statement Alternative Transaction or as part of a material fact or omit the Merger Consideration consists of non-cash consideration, then Stockholder shall have the option of satisfying up to state a material fact necessary to make the statements therein, same proportion of its obligations under this Section 3(d) as the non-cash consideration represented of the total consideration in the light Alternative Transaction or the total Merger Consideration through the delivery of such non-cash consideration to Parent based on the circumstances then existingfair market value thereof. Any payment of Profit under this Section 3(d) shall (x) if paid in cash, not misleadingbe paid by wire transfer of same day funds to an account designated by Parent and (y) if paid through a transfer of non-cash consideration, be paid through delivery of such non-cash consideration to Parent, suitably endorsed for transfer..
(f) To the extent permitted by applicable law, Stockholder hereby waives any rights to appraisal or if during such period rights to dissent from the Merger that it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancemay have under applicable law.
Appears in 1 contract
Covenants. The Company 7.1 ChipMOS covenants that, before the Closing Date:
(1) ChipMOS shall, as soon as possible, and agrees no later than ninety (90) days after the Execution Date, hold a special shareholders meeting, and cause such shareholders meeting to approve a resolution to amend its articles of incorporation, as provided in Exhibit G, and to approve a resolution for the Private Placement Shares to be solely subscribed to by the Subscriber.
(2) After the resolution provided in Section 7.1(1) of this Agreement has been approved by the special shareholders meeting, unless the Parties agree to extend the schedule, ChipMOS shall immediately hold a meeting of the board of directors within ten (10) days to determine the Subscription Price per Share pursuant to Section 1.2 of this Agreement and complete the pricing for the Private Placement Shares.
(3) From the Execution Date to the Closing Date, ChipMOS shall notify Tsinghua Unigroup immediately when it notices that it has violated any representations, warranties or covenants provided in this Agreement or when any event sufficient to cause any representations, warranties or covenants provided in this Agreement to be incorrect or untrue occurs.
(4) From the Execution Date to the Closing Date, except for the group consolidation which ChipMOS intends to proceed with its parent company, ChipMOS TECHNOLOGIES (Bermuda) LTD., in no event shall ChipMOS increase its capital (through public offering or private placement), reduce its capital, distribute dividends, issue convertible bonds, employee share options, restricted employee shares or other equity securities, or distribute earnings in shares. In the event that ChipMOS distributes any dividends, the amount of the dividend per share which shall be obtained by Tsinghua Unigroup/the Subscriber shall be deducted from the Subscription Price per share, and the Total Subscription Price shall also be reduced accordingly.
(5) From the Execution Date to the Closing Date, ChipMOS shall use its reasonable best efforts to satisfy the conditions provided in Article 5 of this Agreement or to cause such conditions to be satisfied in time, and will use its reasonable best efforts to prepare and provide all the documents which are necessary to consummate the Transaction and other relevant documents in connection with ChipMOS to Tsinghua Unigroup.
(6) From the Execution Date to the Closing Date, except for the group consolidation which ChipMOS intends to proceed with its parent Company, ChipMOS TECHNOLOGIES (Bermuda) LTD., in the event that ChipMOS intends to engage in any action outside its daily operations (including, but not limited to, acquiring or disposing of assets equivalent to or above NT$1,000,000,000; applying to financial institutions for loans equivalent to or above NT$1,000,000,000 or guaranteeing an equal amount for others, or creating any security interest over its assets; or lending the funds of the company to others and engaging in mergers and acquisitions), ChipMOS will notify Tsinghua Unigroup within seven (7) working days after such event occurs.
(7) ChipMOS shall assist, in accordance with reasonable requests made by the Subscriber or Tsinghua Unigroup, with communications with the several Underwriters competent authorities in Taiwan regarding each condition necessary to consummate the Transaction, for the ease of Subscriber and ChipMOS to submit with PRC and Taiwan authorities the necessary applications for approvals or permits, filings or reports. ChipMOS shall give notice of the related content of such communications to the Subscriber and Tsinghua Unigroup, and it shall use its best efforts to assist the Subscriber and/or Tsinghua Unigroup to visit the competent authorities in Taiwan with ChipMOS when necessary.
(8) In order to successfully consummate the Transaction, ChipMOS shall abide by the necessary legal procedures and make the necessary filings and applications with the authorities, and assist and positively cooperate with the Subscriber and/or Tsinghua Unigroup to deal with or exclude requests and changes which may affect the smooth progress of this Agreement and the Transaction, including, but not limited to, providing necessary clarifications to relevant authorities pursuant to the requirements of relevant laws.
(9) It shall not engage in any act or omission which may be reasonably expected to prevent the conditions provided in Article 5 of this Agreement from being satisfied, or cause the representations and warranties provided in Article 3 of this Agreement to become untrue or incorrect.
(10) In order to make the Subscriber and/or Tsinghua Unigroup perform the information disclosure obligation in connection with the Transaction, in accordance with the laws in Taiwan or PRC, ChipMOS shall use its best efforts to provide every necessary assistance to the Subscriber and/or Tsinghua Unigroup, including, but not limited to, disclosing the schedule arrangement, holding press conferences, and providing information which needs to be provided pursuant to the laws or the orders of the competent authorities.
(11) If the group consolidation which ChipMOS intends to proceed with its parent Company, ChipMOS TECHNOLOGIES (Bermuda) LTD., is consummated before the Closing Date, this shall not cause the percentage of the shares of ChipMOS held by Tsinghua Unigroup pursuant to this Agreement to become lower than 25% as followsstipulated in Section 1.1 of this Agreement.
7.2 ChipMOS covenants that, after the Closing Date, it shall:
(1) As soon as possible after the Closing Date, at ChipMOS’ 2016 regular shareholders meeting, ChipMOS shall cause one person designated by the Subscriber to be nominated as a director candidate. However, in the event that the Closing Date falls behind the book closure period of the 2016 regular shareholders meeting which ChipMOS reports to TWSE, ChipMOS shall convene a special shareholders meeting within three (3) months after the Closing Date as soon as possible, and one person designated by the Subscriber to be nominated as a director candidate; further, at such shareholders meeting, ChipMOS:
(a) If shall hold a by-election to elect the Initial Registration Statement has not already been declared effective director, and cause the Subscriber or the person designated by the CommissionSubscriber to be elected as a director; and
(b) propose a proposal and approve a resolution to release the director elected pursuant to foregoing item (a) from his/her non-competition obligation.
(2) The fund received from the private placement shall be designated to be used for the purposes approved by ChipMOS’ shareholders or its board of directors. The main purpose includes the replenishment of the operating funds.
(3) Three (3) years after depositing the Private Placement Shares into the Subscriber’s deposit account pursuant to Section 2.2 of this Agreement, if the Company will Private Placement Shares meet the listing standards and the standards regarding supplemental public offering, ChipMOS shall make an application immediately to TWSE for the issuance of an approval letter acknowledging that the listing standards regarding the Private Placement Shares are met, and file for the supplemental public offering. Before the Private Placement Shares undergo the supplemental public offering procedures and are approved for listing, ChipMOS shall use its best efforts to cause the Initial Registration Statement Private Placement Shares to meet the standards of supplemental public offering and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filinglisting approval.
(4) ChipMOS shall issue the Private Placement Shares and deposit the Private Placement Shares into the deposit account of the Subscriber pursuant to Section 2.2 of this Agreement.
(5) Within the period during which the shares held by the Subscriber are not less than 5% of the total number of ChipMOS’ issued shares, ChipMOS shall cause the Subscriber or one person designated by the Subscriber to be elected as a director in every regular or special shareholders meeting in the future when an election or by-election of directors is proposed.
(6) If the group consolidation which ChipMOS intends to proceed with its parent Company, ChipMOS TECHNOLOGIES (Bermuda) LTD., is completed after the Closing Date, this shall not cause the percentage of the shares of ChipMOS held by Tsinghua Unigroup pursuant to this Agreement to become lower than 25% provided in Section 1.1 of this Agreement.
7.3 Tsinghua Unigroup covenants that:
(1) It will cause the Subscriber to abide by the provisions regarding the transfer of the Private Placement Shares provided in Taiwan’s Securities and Exchange Act and relative laws and regulations which are effective at the time of transfer.
(2) In order to obtain the approval from the competent authorities pursuant to Section 6.2 of this Agreement, the Subscriber shall assist providing the industry cooperation strategies. Further, within the period during which the Subscriber is a shareholder of ChipMOS, Tsinghua Unigroup shall cause the Subscriber to abide by Taiwan’s laws and regulations regarding PRC investment in Taiwan, including, but not limited to: (a) it shall not have control over ChipMOS; (b) The Company will advise you, promptly after it shall receive notice not serve as or obtain knowledge thereof, appoint the managerial officer of ChipMOS; (c) the board seats held by it shall not exceed the total number of the issuance seats held by all other shareholders; (d) it shall not solicit proxies before the shareholders meetings; and (e) other covenants of the Subscriber requested by the Commission of any stop order suspending competent authorities, provided, however, that if the effectiveness of laws and regulations are amended in the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectusfuture, the General Disclosure Packageamended laws and regulations shall apply.
(3) From the Execution Date, and within the Prospectus or any Issuer Free Writing Prospectusperiod during which the Subscriber is a shareholder of ChipMOS, 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 it shall use its best efforts to prevent cause the issuance Subscriber to perform and abide by all of any stop order or the obligations and covenants which shall be performed under this Agreement.
(4) From the Execution Date to obtain its withdrawal if such a stop order should be issued. Additionallythe Closing Date, the Company agrees Tsinghua Unigroup shall notify ChipMOS immediately when it notices that it has violated any representations, warranties or covenants provided in this Agreement or any event which will sufficiently cause any representations or warranties provided in this Agreement to be incorrect or untrue occurs. Tsinghua Unigroup shall comply with the provisions of Rules 424(b) and 430A, as applicable, under the Securities Act and will also 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) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by satisfy the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time conditions provided in Article 6 of this Agreement or to time cause such conditions to be satisfied 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 General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancetime.
Appears in 1 contract
Sources: Share Subscription Agreement (Chipmos Technologies Bermuda LTD)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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) of the Rules and the Securities ActRegulations; 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (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 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 General 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) 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.
(c) (A) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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, the General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to qualify 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 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 copies of the Registration Statement (three of which will be signed and will include all exhibits), each Preliminary Prospectus, the Prospectus, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case as soon as available and in such quantities as you may from time to time reasonably request.
(f) During a period of five years commencing with the date hereof, the Company will furnish to the Representatives, and to each Underwriter who may so request in writing, copies of all 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., the Nasdaq Stock Market or any securities exchange.
(g) 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.
(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 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, (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 in accordance with Section 4(d) hereof, (iv) the fees and expenses of any transfer agent or registrar, (v) 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, (vi) listing fees, if any, and (vii) 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 9(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 Underwriters' obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the several Underwriters for all out-of-pocket disbursements (including fees and disbursements of counsel) 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.
(i) 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 under the caption "Use of Proceeds" 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.
(j) The Company will not, without your prior written consent, directly or indirectly, offer for sale, sell, contract to sell, grant any option for the sale of or otherwise issue or dispose of any shares of Common Stock, or any securities convertible into or exchangeable for Common Stock, or any options, warrants or other rights to purchase or acquire, Common Stock or securities convertible or exchangeable for Common Stock, for a period of 180 days after the commencement of the public offering of the Securities by the Underwriters, except (i) to the Underwriters pursuant to this Agreement (ii) upon the exercise of options granted or warrants issued prior to the date of this Agreement, or (iii) for grants of options to directors, officers, employees or consultants of the Company under the Company's Amended and Restated 1993 Long-Term Incentive and Stock Option Plan, the 1997 Employee Stock Purchase Plan and the Company's Directors' Stock Option Plan.
(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 shareholders stating that such person will not, without your prior written consent, directly or indirectly, offer for sale, sell, contract to sell or otherwise dispose of any shares of Common Stock or any securities convertible into or exchangeable for Common Stock, or any options or warrants to acquire, shares of Common Stock or securities convertible into or exchangeable for Common Stock for a period of 180 days after the commencement of the public offering of the Securities by the Underwriters, except (i) as a BONA FIDE gift or gifts, provided that the donor provides prior written notice of such gift or gifts to the Underwriters and the donee or donees thereof agree in writing to be bound by the restrictions set forth herein (ii) as a distribution to stockholders of the shareholders, provided that the distributee or distributees thereof agree to be bound by the restrictions set forth herein, or (iii) for shares acquired in the public market on or after the date of this 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 any securities of the Company which are required to be disclosed in response to Item 701 of Regulation S-K of the Commission which have not been so disclosed in the Registration Statement.
(m) 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) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information will be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Endocardial Solutions Inc)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If During the Initial Registration Statement has not already been declared effective 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 Final 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 CommissionUnderwriters (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, including any Upsizing Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, the Company will use its best efforts shall furnish to cause the Initial Registration Statement Underwriters for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Underwriters or Prospectus or additional information; if counsel to the Company has elected Underwriters reasonably object. Subject to rely on Rule 430A this Section 4(a), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Canadian Final 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 ofapplicable BC Securities Laws, 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement such Canadian Final Prospectus with the Commission BCSC within the applicable time period periods required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingthereby.
(b) The Company will advise youthe Underwriters, promptly after it shall receive written notice or obtain knowledge thereof, of the issuance by the Commission or the BCSC of any stop order or cease trade order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto thereto, or preventing or suspending the use of the Canadian Base Prospectus, any Preliminary Prospectus, the General Time of Sale Disclosure Package, the Final Prospectus, the Canadian Final 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 cease trade order or to obtain its withdrawal if such a stop order or cease trade order should be issued. Additionally, the Company agrees that it will notify the Underwriters promptly, and confirm the notice as applicable, (1) when the Canadian Final Prospectus shall comply have been filed with the provisions BCSC pursuant to applicable BC Securities Laws, (2) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b), (3) prior to the termination of Rules 424(b) and 430Athe offering of the Securities, of any request by the BCSC to amend or supplement, as applicable, under the Securities Act and will use its reasonable efforts to confirm that Canadian Base Prospectus, the Canadian Final Prospectus or any filings made document incorporated by reference therein or for additional information or of any request by the Company under Rule 424(b)Commission to amend the Registration Statement or to amend or supplement, Rule 433 as applicable, the U.S. Base Prospectus, the Final Prospectus or Rule 462 were received in a timely manner any document incorporated by reference therein or for additional information, (4) of the time when, prior to the termination of the offering of the Securities, any amendment or supplement, as applicable, to the Canadian Base Prospectus or any document incorporated by reference therein has been filed with or receipted by the CommissionBCSC, or of the filing with, or mailing or the delivery to, the Commission for filing of any amendment of the Registration Statement or supplement to the U.S. Base Prospectus.
(c) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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, by the Exchange Act and by BC Securities Laws so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the General Time of Sale Disclosure Package and the Final Prospectus. If during such period any event occurs shall occur or condition shall exist as a result of which the Final Prospectus (or if the Final Prospectus is not yet available to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Time of Sale Disclosure Package) to comply with the Securities Act or to file under the Exchange Act or under BC Securities Laws any document which would be deemed to be incorporated by reference in the Final Prospectus in order to comply with the Securities Act, the Exchange Act or BC Securities Laws, the Company will promptly notify the Underwriters 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) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Sources: Underwriting Agreement (TEKMIRA PHARMACEUTICALS Corp)
Covenants. The Company covenants and agrees with the several Underwriters as followsDealer-Manager:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will To use its best commercially reasonable efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; effective, provided that the Company will notify you shall have the right to discontinue the Rights Offering and withdraw the Registration Statement if the Company’s Board of Directors determines in good faith that it is no longer in the best interests of the Company; to advise the Dealer-Manager, promptly after it receives notice thereof, of the time when the Initial Registration Statement Statement, or any post-effective amendment to the Initial Registration Statement has become thereto, becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and of any request to furnish the Dealer-Manager with copies thereof; to prepare a Prospectus in a form approved by the Commission for any amendment Dealer-Manager (such approval not to be unreasonably withheld or supplement delayed) and to the Initial Registration Statement or file such 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with prescribed by such rule; to advise the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 youDealer-Manager, promptly after it shall receive receives notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness or of the Registration Statement, or any post-effective amendment thereto or order preventing or suspending the use of any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing the Prospectus, of the suspension of the qualification of the Securities Rights for offering or sale in any jurisdiction, or 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 and, in the Company will promptly use its best efforts to prevent event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its commercially reasonable efforts to obtain its withdrawal if withdrawal;
b) To deliver promptly to the Dealer-Manager such a stop order should be issued. Additionallynumber of the following documents as the 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, any other Offer Documents filed as exhibits, and the computation of per share earnings); (ii) each Preliminary Prospectus, the Company agrees that it shall comply with Prospectus and any amended or supplemented Prospectus; and (iii) any document incorporated by reference in the provisions Prospectus (excluding exhibits thereto); and, if the delivery of Rules 424(b) and 430A, as applicable, under the Securities Act and will use its reasonable efforts to confirm that a prospectus is required at 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) (A) Within the time during which a prospectus (assuming the absence of Rule 172) Prospectus relating to the Rights or the Securities is required to be delivered under the Securities Act by and if at such time any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General Disclosure Package and the Prospectus. If during such period any event occurs events shall have occurred as a result of which the Prospectus (as then amended or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then existingunder which they were made when such Prospectus is delivered, not misleading, or or, if for any other reason it shall be necessary during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or if to file under the Exchange Act any document incorporated by reference in the Prospectus is not yet available to prospective investors, the General Disclosure Package) in order to comply with the Securities Act or the Exchange Act, to notify the Company Dealer-Manager and, upon its request, to file such document and to prepare and furnish without charge to the Dealer-Manager as many copies as the Dealer-Manager may from time to time reasonably request of an amended or supplemented Prospectus which 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance;
c) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Dealer-Manager, be necessary or advisable in connection with the distribution of the Rights or the sale of the Securities or be requested by the Commission;
d) Prior to filing with the Commission any: (i) Preliminary Prospectus, (ii) amendment to the Registration Statement, any document incorporated by reference in the Prospectus or (iii) any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Dealer-Manager and counsel for the Dealer-Manager and obtain the consent of the Dealer-Manager to the filing (which consent shall not be unreasonably withheld);
e) Until the completion of the Rights Offering, following the effective date of the Registration Statement, to furnish to the Dealer-Manager copies of all materials not available via ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ by the Company to its shareholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which any of the Company’s securities may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder;
f) To qualify or register the Rights and the Securities for sale under (or obtain exemptions from the application of) blue sky laws of the United States of America designated by the Dealer-Manager, to comply with such laws and to continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Rights and the Securities; provided, however, that the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation;
g) The Company will advise the Dealer-Manager promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Rights and the Securities for offering, sale or trading in in the United States of America 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 Company shall use its commercially reasonable efforts to obtain the withdrawal thereof at the earliest possible moment;
h) To apply the net proceeds from the exercise of the Rights in the manner described under the caption “Use of Proceeds” in the Prospectus, provided that the Company will not be required to apply the net proceeds in such a manner if the Company’s Board of Directors determines, in good faith, that doing so would be inconsistent with the exercise of its fiduciary duties under applicable law;
i) Prior to the effective date of the Registration Statement, to apply for the listing of the Ordinary Shares issuable upon the exercise of the Rights Warrants and Pre-Funded Warrants on the Trading Market and to use its commercially reasonable efforts to complete that listing prior to the expiration of the Rights Offering;
j) To advise the Dealer-Manager, directly or through the Subscription Agent, from time to time, as any Dealer-Manager shall request, of the number of Rights Shares and Rights Warrants subscribed for, and arrange for the Subscription Agent to furnish the Dealer-Manager with copies of written reports it furnishes to the Company concerning the Rights Offering;
k) To use its commercially reasonable efforts to cause the Subscription Agent to commence mailing the Offer Documents to record holders of the Ordinary Shares not later than the second business day following the record date for the Rights Offering, and complete such mailing as soon as practicable;
l) To reserve and keep available for issue upon the exercise of the Rights such number of authorized but unissued Ordinary Shares as will be sufficient to permit the exercise in full of all Rights Warrants and Pre-Funded Warrants issued upon such exercise in full of the Rights; and
m) To not take, directly or indirectly, 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 price of any security of the Company to facilitate the issuance of the Rights or the sale or resale of the Securities.
Appears in 1 contract
Covenants. The Company covenants and agrees with the several Underwriters each Underwriter as follows:
(a) If During the Initial period beginning on the date hereof and ending on the later of the last possible Date of Delivery 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 has Statement, the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not already been declared effective by file any such proposed amendment or supplement to which the CommissionRepresentatives or counsel to the Underwriters reasonably object. Subject to this Section 4(a), immediately following execution of this Agreement, the Company will use its best efforts to cause prepare the Initial Registration Statement Prospectus containing the Rule 430B Information and any post-effective amendments thereto to become effective other selling terms of the Securities, the plan of distribution thereof and such other information as promptly may be required by the Securities Act or the Rules and Regulations or as possible; the Underwriters and the Company will notify you promptly may deem appropriate, and if requested by the Underwriters, an Issuer Free Writing Prospectus containing the selling terms of the Securities and such other information as the Company and the Underwriters 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) After the date of this Agreement and during the Prospectus Delivery Period, the Company shall promptly advise the Representatives in writing of : (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the time when the Initial Registration Statement or and date of any filing of any post-effective amendment to the Initial 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 Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsany Preliminary Prospectus, the Company will prepare and file a Prospectus containing Time of Sale Disclosure Package or the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within Prospectus; (iii) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, date that any amendments or supplements post-effective amendment to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwritersbecomes effective; and the Company will furnish the Representatives 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.
(biv) 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, Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of any Preliminary Prospectus, the General Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus; or (v) any proceedings to remove, of suspend or terminate from listing or quotation the suspension of the qualification of the Securities Common Stock from any securities exchange upon which it is listed for offering trading or sale in any jurisdictionincluded or designated for quotation, or of the threatening or initiation or threatening of any proceeding proceedings for any of such purpose; and purposes. If the Commission shall enter any such stop order at any time, the Company will promptly use its best reasonable efforts to prevent obtain the issuance lifting of any stop such order or to obtain its withdrawal if such a stop order should be issuedat the earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b) ), 430A and 430A430B, 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), ) or Rule 433 or Rule 462 were received in a timely manner by the CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
(ci) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, Act 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 General 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 General 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 Representatives or counsel to the Underwriters to amend the Registration Statement or supplement the Prospectus (or or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Representatives and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
(ii) 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 that has not been superseded or modified or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact 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 Representatives 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.
(iii) If immediately prior to the third anniversary of the initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company will prior to that third anniversary file, if it has not already done so, a new shelf registration statement relating to the Securities, in a form satisfactory to the Underwriters, will use its best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statement shall include such new shelf registration statement.
(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 Representatives 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 or other jurisdiction.
(e) The Company will furnish, at its own expense, to the Representatives and counsel for the Underwriters copies of the Registration Statement (which will include, if requested by the Representatives, three complete manually signed copies of the Registration Statement and all consents and exhibits filed therewith), and to the Representatives and any dealer each Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request.
(f) During a period of five years commencing with the date hereof, the Company will furnish to the Representatives, if so requested by the Representatives in writing, copies of all periodic and special reports furnished to the stockholders of the Company and all information, documents and reports filed with the Commission, FINRA or any securities exchange (other than any such information, documents and reports that are filed with the Commission electronically via ▇▇▇▇▇ or any successor system).
(g) 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 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 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) 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; (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 applicable securities laws of jurisdictions which the Underwriters shall designate, including 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; provided, however, that such costs and expenses provided for in this clause (iii) shall not exceed $20,000 in the aggregate without the prior consent of the Company ; (iv) the fees and expenses of the Custodian and any transfer agent or registrar; (v) listing fees, if any; (vi) the cost and expenses of the Company relating to investor presentations or any “roadshow” undertaken in connection with marketing of the Securities, including without limitation, expenses associated with the production of roadshow slides and graphics, fees and expenses of any consultants engaged in connection with the roadshow presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of aircraft and other transportation chartered in connection with the roadshow; (vii) 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 (viii) all other costs and expenses of the Underwriters (including reasonable fees and disbursements of counsel) incident to the performance of their obligations hereunder not otherwise specifically provided for herein; provided, however, such costs and expenses provided for in this clause (viii) shall not exceed $100,000 in the aggregate (the “Reimbursement Limit”) without the prior consent of the Company.
(i) 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 Prospectus.
(j) During a period of 90 days from the date of the Prospectus (the “Lock-Up Period”), the Company will not, without the prior written consent of the Representatives, (i) directly or indirectly, 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 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 foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap 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 (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus or (D) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.
(k) The Company has caused to be delivered to the Representatives prior to the date of this Agreement a letter, substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”), signed by each of the Company’s directors and executive officers listed in Schedule B hereto. 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.
(l) The Company 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.
(m) 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 on a timely basis with the Commission such periodic and special reports as required by the Rules and Regulations.
(o) The Company and its subsidiaries will maintain such controls and other procedures, including without limitation those required by the Exchange 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 Company, including its subsidiaries, is made known to them by others within those entities.
(p) The Company and its subsidiaries will comply in all material respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(q) The Company represents and agrees that, unless it obtains the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in 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 fi
Appears in 1 contract
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If The Employee agrees that all work produced by him under this Agreement or otherwise for the Initial Registration Statement has Company or NRS shall be deemed to be a "work made for hire" as defined in the federal Copyright Act, Title 17 of the United States Code. Without further consideration, the Employee hereby irrevocably assigns, transfers and sets over to the Company, its successors and assigns, all of the Employee's right, title and interest in and to any and all developments, processes, discoveries, technologies and creations and all copyrightable and patentable works, materials and ideas (collectively "Inventions") and any improvement to any Invention, whether or not already patentable, copyrightable or legally protectable or recognized as forms of property, and whether or not completed or used in practice, together with all information and data relating thereto (hereinafter "Proprietary Information") (including all designs, drawings, prints, patterns, sketches, ideas, inventions, improvements, writings and other works of authorship, theses, books, computer programs, lectures, illustrations, photographs, scientific and mathematical models, prints and any other subject matter that is or may become legally protectible or recognized as a form of property) that have been declared effective conceived, made or suggested, or may hereafter be conceived, made or suggested, either by the CommissionEmployee or by others with the assistance or other participation of the Employee, and (i) on the Company's premises or during the Employee's usual working hours, or (ii) otherwise related to the business of the Company will use its best efforts to cause the Initial Registration Statement and or any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly affiliate of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingCompany.
(b) The Company will advise you, Employee shall disclose 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 General 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 to the Company will promptly use its best efforts to prevent the issuance of any stop order and all Inventions and Proprietary Information when conceived 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 Employee, and report promptly to the Company under Rule 424(b)all information of which the Employee may become aware during the term of employment with the Company that may be of benefit to the Company. During the period of his employment hereunder, Rule 433 the Employee shall also disclose promptly to the Board of Directors of the Company all material Inventions relating to the business, products, or Rule 462 were received in a timely manner by projects of the Commission.Company and/or
(c) Upon request by the Company, the Employee shall, without compensation other than the Employee's usual and customary salary, bonus and benefits hereunder, execute all such assignments and other documents and perform all such acts necessary to enable the Company to obtain or uphold for its benefit patents or copyrights for, and other rights to, such Inventions and Proprietary Information relating thereto, which shall be owned by the Company, whether or not the Employee is the inventor thereof.
(Ad) Within The Employee shall have the time during which a prospectus (assuming right to manage the absence Company in the role of Rule 172) relating its chief operating officer, and shall have full authority in making decisions with regards to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer following:
(the “Prospectus Delivery Period”), i) setting salaries of employees' of the Company will use subject to G&C's overall salary policies;
(ii) maintaining the Company's holiday parties and broker retreats as consistent with prior Company practice;
(iii) maintaining the Company's location through the current term of its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense lease unless expansion of the Company's business requires moving its offices, and, in general, maintaining the Company's office in the same geographic vicinity;
(iv) so writing checks on behalf of the Company solely for advances on commissions and commissions for North Ridge's registered representatives (provided that Employee shall provide the Company with supporting documentation for each such check); and
(v) hiring and firing of employees, brokers and consultants subject to the review of the Company's Board of Directors provided that Employee may veto the hiring or retention of any broker on the basis of a poor securities law compliance record.
(e) G&C shall cause the Employee to be elected as to correct such statement or omission or effect such compliancea member of the Board of Directors of the Company during the term of employment.
Appears in 1 contract
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows: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 Representative containing information previously omitted 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 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 Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ab) If the Initial Registration Statement The Company has not already 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 Company’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 Company and RBC Capital Markets Corporation, 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 declared effective consented to by the CommissionCompany and RBC Capital Markets Corporation is listed on Schedule II(a) or Schedule II(b) hereto. The Company 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 Company 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 Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will use its best efforts 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 Company 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 Initial Registration Statement and stabilization or manipulation of the price of any post-effective amendments thereto to become effective as promptly as possible; securities of the Company.
(d) The Company will notify you advise the Representative promptly of the time (i) when the Initial Registration Statement or any post-effective amendment to thereto shall have become effective; (ii) of receipt of any comments from the Initial Commission; (iii) of any request of the Commission for amendment of the Registration Statement has become effective or any for supplement to the Prospectus has been filed and of any request by the Commission or for any amendment or supplement to the Initial 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 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(iv) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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, Statement or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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 institution of any proceeding proceedings for any such that purpose; and the . The Company will promptly use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain its withdrawal as soon as possible the lifting thereof, if issued.
(e) The Company will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such a stop order should 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 issued. Additionallyreasonably required for that purpose, provided, the Company agrees that 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 comply with the provisions of Rules 424(b) is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and 430Afile such statements, reports, and other documents, as applicableare 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 Company 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 Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is required under the Securities Act Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Representative at or before the Closing Date, three copies of the executed Registration Statement and all amendments thereto including all exhibits filed therewith, and will use its reasonable efforts deliver to confirm the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that any filings made by may reasonably be requested) and of all amendments thereto, as the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the CommissionRepresentative may reasonably request.
(cg) (A) Within The Company, during the time during which a prospectus (assuming period when the absence of Rule 172) relating to the Securities Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by any Underwriter or dealer (the “Prospectus Delivery Period”), Exchange Act and the Company Rules and Regulations and will use its best efforts to otherwise comply with all requirements imposed upon it by the Securities Act, as now Act and hereafter amended, and by the Rules and Regulations, as from time to time in forceand the Exchange Act, and the rules and regulations of the Commission thereunder, so far as necessary to permit the continuance completion of sales the distribution of or dealings in the Securities Shares as contemplated by the provisions hereof, the General Disclosure Package in this Agreement and the Prospectus. If during such the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event occurs shall occur as a result of which which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General 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 existingexisting at the time the Prospectus is delivered to a purchaser, not misleading, or or, if during such period it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus (or if so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is not yet available to prospective investorsso delivered, be misleading, or so that the General Disclosure Package) to Prospectus will comply with the law.
(h) The Company 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 ActAct 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 Company will promptly notify you and will amend furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(j) The Company will not offer, sell, contract to sell, pledge or supplement otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing for a period of 90 days after the date of the Prospectus, otherwise than hereunder or with the prior written consent of RBC Capital Markets Corporation; provided, that this provision will not restrict the Company from (i) issuances pursuant to the exercise of options outstanding on the date of the Prospectus; (ii) grants of employee stock options and restricted stock and other securities issuances pursuant to the terms of a plan in effect on the date of the Prospectus; (iii) issuances pursuant to the exercise of such options; (iv) issuances pursuant to the Company’s 401(k) plan, (v) the filing of registration statements on Form S-8 and amendments thereto in connection with those stock options or the Company’s employee stock option plans in existence on the date of the Prospectus (or, if as described in the Prospectus is not yet available to prospective purchasers, and the General Disclosure Package, (vi) grants of Common Stock as employee length service awards, (at the expense vii) grants of Common Stock to members of the Company’s board of directors as a portion of compensation for service on the Company’s board of directors, and (viii) so issuances pursuant to dividend reinvestment plans and the filing of registration statements and amendments thereto in connection with the sale and issuance of securities under such plans. Notwithstanding the foregoing paragraph, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or announces material news or a material event or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 15-day period following the last day of the 90-day restricted period, then the restrictions imposed in the foregoing paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release, the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waives such extension in writing.
(k) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange.
(l) The Company has caused each executive officer and director of the Company to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form attached as Exhibit B (the “Lockup Agreements”).
(m) The Company 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.
(n) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to correct such statement or omission or effect such complianceregister as an investment company under the 1940 Act.
(o) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
Appears in 1 contract
Covenants. The Company Each of AmeriCredit, the Seller and the Issuer, severally covenants and agrees agrees, in each case as to itself individually or in its capacity as Seller or Servicer, as applicable, each with respect to itself only, that through the several Underwriters Termination Date and thereafter so long as followsany amount of the Aggregate Note Balance shall remain outstanding or any monetary obligation arising hereunder shall remain unpaid, unless the Required Purchasers shall otherwise consent in writing, that:
(a) If Each of the Initial Registration Statement has not already been declared effective Issuer, AmeriCredit, the Seller and the Servicer shall perform in all material respects each of the respective agreements, warranties and indemnities applicable to it under the Related Documents to which it is a party 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;
(b) The Issuer, the Seller and the Servicer, as applicable, shall promptly furnish to the Administrative Agents and each Agent (i) a copy of each certificate, report, statement, notice or other communication furnished by or on behalf of the Issuer, the Seller or the Servicer, as applicable, to the holders of Notes, to the Indenture Trustee, to the Collateral Agent or, to the extent the Notes are rated by any Rating Agency, to such Rating Agency concurrently therewith and furnish to the Administrative Agents promptly after receipt thereof a copy of each notice, demand or other communication received by or on behalf of the Issuer, the Seller, or the Servicer, as applicable, pursuant to this Agreement, the Servicing Agreement, the Exchange Note Supplement or the Indenture, and (ii) such other information, documents, records or reports respecting the 2011-A Lease Agreements, the 2011-A Leased Vehicles, the Collateral, the Issuer, the Seller or the Servicer which is in the possession or under the control of the Issuer, the Seller or the Servicer, as the case may be, as an Administrative Agent or any such Agent may from time to time reasonably request;
(c) Without limitation of the provisions of subsection 5.1(b) above, the Servicer shall furnish to the Administrative Agents and each Agent (i) with respect to each Payment Date, a copy of the completed report furnished to the Indenture Trustee pursuant to Section 2.09(a) of the Servicing Agreement, (ii) a copy of each Officer’s Certificate furnished to the Indenture Trustee pursuant to Section 2.09(c) of the Servicing Agreement, and (iii) a copy of each annual certified public accountants’ reports received by the CommissionIndenture Trustee pursuant to Section 2.09(b) the Servicing Agreement;
(d) The Servicer shall deliver (or cause the Seller to deliver) to the Administrative Agents and each Agent (i) within ninety (90) days following the end of each fiscal year, beginning with the fiscal year ending December 31, 2011, the Company will use its best efforts to cause the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly audited consolidated balance sheet of the time when Servicer as of the Initial Registration Statement end of such fiscal year, and the related audited consolidated statements of income and cash flows for such fiscal year, prepared in accordance with generally accepted accounting principles and accompanied by the opinion of its independent certified public accountants and (ii) within forty-five (45) days following the end of each of its fiscal quarters, beginning with the fiscal quarter ending March 31, 2011, the unaudited consolidated balance sheet of the Servicer as of the end of such fiscal quarter, and the related unaudited consolidated statements of income and cash flows for such fiscal quarter, prepared in accordance with generally accepted accounting principles;
(e) Each of the Issuer, the Seller and the Servicer shall furnish to the Administrative Agents and each Agent promptly after known to such party, information with respect to any action, suit or proceeding involving such party or any post-effective amendment of its Affiliates by or before any court or any Governmental Authority which, if adversely determined, would have a 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) Each of the Servicer, the Seller and the Issuer, as applicable, will, at any time and from time to time during regular business hours, on at least five (5) Business Days’ (or if a Termination Event or event or condition which, with the passage of time or the giving of notice, or both, would become a Termination Event has occurred, one Business Day’s) notice to the Initial Registration Statement Seller, the Servicer and the Issuer, as the case may be, permit an Administrative Agent and each Agent, or its agents or representatives, at the sole cost and expense of AmeriCredit, provided that so long as no Termination Event or event or condition which, with the passage of time or the giving of notice, or both, would become a Termination Event has become effective occurred, AmeriCredit shall only be liable for the costs and expenses of one visit and examination of the type contemplated by this Section 5.1(f) per calendar year, (i) to examine all books, records and documents (including computer tapes and disks) in the possession or any supplement under the control of the Seller, the Servicer or the Issuer, as the case may be, relating to the Prospectus has been filed 2011-A Lease Agreements and the related 2011-A Leased Vehicles, and (ii) to visit the offices and properties of any request the Seller, the Servicer or the Issuer, as applicable, for the purpose of examining such materials described in clause (i) above. Any information obtained by an Administrative Agent or an Agent pursuant to this subsection 5.1(f) shall be held in confidence by the Commission for any amendment Administrative Agents or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationssuch Agent, 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 byas applicable, and otherwise in accordance with the provisions ofof Section 6.2 hereof, Rules 424(b) and 430A of the Rules and Regulations; if the Company has elected except that an Administrative Agent or such Agent may disclose such information to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise any Purchaser which shall hold such information in accordance with the provisions of, Rule 462(bof Section 6.2 hereof;
(g) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements The Servicer shall furnish to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; Administrative Agents and the Company will furnish the Representatives 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 youeach Agent, promptly after it shall receive notice or obtain knowledge thereofthe occurrence of any Termination Event, a certificate of an appropriate officer of the issuance Servicer setting forth the circumstances of such Termination Event and any action taken or proposed to be taken by the Commission of any stop order suspending Servicer or the effectiveness of applicable Seller with respect thereto;
(h) AmeriCredit covenants with the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary ProspectusAdministrative Agents, the General 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; Agents and the Company will promptly use its best efforts Purchasers that, if a Rating is requested pursuant 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(bSection 2.4(b), Rule 433 or Rule 462 were received in AmeriCredit will execute and deliver a timely manner by the Commission.
written representation (ceach, a “17g-5 Representation”) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required nationally recognized statistical rating organization hired under Section 2.4(b) to be delivered under rate the Securities Act by any Underwriter or dealer Notes (the “Prospectus Delivery PeriodHired NRSRO”), which satisfies the Company requirements of paragraph (a)(3)(iii) of Rule 17g-5 and AmeriCredit will use its best efforts to comply with all requirements imposed upon it by and will cause 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, the General 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 General 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 investors, the General Disclosure Package) Seller to comply with the Securities Act, 17g-5 Representations; and
(i) On any date on which 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 General Disclosure Package) (at the expense Securitization Value of the CompanyEligible Collateral Assets is greater than zero and so long as any Notes remain Outstanding (1) so as AmeriCredit shall own the Issuer Trust Certificates; (2) the Issuer Trust Certificates shall represent at least 5% of the Securitization Value of the Eligible Collateral Assets; (3) AmeriCredit shall not enter into any credit risk mitigation, short positions or any other ▇▇▇▇▇▇ with respect to correct the Issuer Trust Certificates or the Indenture Collateral; (4) in each Servicer Report, AmeriCredit shall represent (a) that it continues to own the Issuer Trust Certificates and (b) that no credit risk mitigation, short positions or any other ▇▇▇▇▇▇ with respect to the Issuer Trust Certificates or the Indenture Collateral have been entered into; and (5) AmeriCredit shall provide to any Noteholder which is subject to European Union Directive 2006/48/EC (the “CRD”) all information which such statement or omission or effect Noteholder would reasonably require in order for such complianceNoteholder to comply with its obligations under Article 122a(4) and (5) of the CRD.
Appears in 1 contract
Sources: Note Purchase Agreement (General Motors Financial Company, Inc.)
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 430A 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveAct, the Company will prepare and file the Rule 462 Registration Statement 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) of the Rules and the Securities ActRegulations; 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, based on the advice of counselin your opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 (including any term sheet within the meaning of Rule 434 of the Rules and Regulations or any document that is incorporated by reference in 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; and the Company will file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of Shares by the Underwriters.
(bii) The Company will advise you, promptly after it shall receive receives notice or obtain obtains 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 General 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) 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.
(c) (Aiii) Within the time during which a prospectus (assuming including any term sheet within the absence meaning of Rule 172434 of the Rules and Regulations) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)Act, the Company will use its best efforts to 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, the General Disclosure Package hereof 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify the Securities for sale under the securities laws of such jurisdictions (domestic or foreign) 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 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 the Underwriters copies of the Registration Statement (three of which will include all exhibits), one set of executed signature pages to the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments and supplements (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to such documents, in each case 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 date hereof, the Company will furnish to each Underwriter copies of all periodic and special reports furnished to the stockholders of the Company and all information, documents and reports filed with the Commission, the NASD, the Nasdaq National Market or any securities exchange.
(vii) 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 and will advise the Underwriters in writing when such statement has been so made available.
(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 9(a) hereof or is terminated, will pay or cause to be paid (A) all expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the 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, except as otherwise 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, (C) 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 in accordance with Section 4(a)(iv) hereof, (D) the fees and expenses of any transfer agent or registrar, (E) the filing fees and other fees and expenses (including, without limitation, the reasonable fees and disbursements of counsel for the Underwriters) incident to any required review by the NASD of the terms of the sale of the Securities, (F) listing fees, 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 9(a) hereof which prevents this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company or the Selling Stockholders to perform any agreement on its or their part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by the Company or the Selling Stockholders is not fulfilled, the Company will reimburse the several Underwriters for all out-of-pocket disbursements (including fees and disbursements of counsel) 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.
(ix) 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.
(x) The Company will not, without U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.'s prior written consent, 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 (A) for the sale by the Company of the Securities to the Underwriters pursuant to this Agreement, (B) for the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing and which are disclosed in the Registration Statement and the Prospectus, and (C) for the grant by the Company of any option or right to purchase shares of Common Stock pursuant to the Company's [stock option plans], each as in effect on the date of this Agreement, so long as each recipient of options or rights to purchase 1,000 or more shares of Common Stock executes the letter contemplated by paragraph (xi) below.
(xi) The Company either has caused to be delivered to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ or will cause to be delivered to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ prior to the effective date of the Registration Statement a letter in the form of Exhibit A hereto from each of the Company's directors and officers and stockholders identified in Schedule III hereto stating that such person agrees that such person will not, without U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ prior written consent, offer for sale, sell, contract to sell or otherwise dispose of 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 the date of the Prospectus.
(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, 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.
(xiii) 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.
(xiv) The Company will inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba. Such information will be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
(xv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of Securities as contemplated herein in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the 1940 Act.
(b) Each of the Selling Stockholders severally covenants and agrees with the several Underwriters as follows:
(i) Except as otherwise agreed to by the Company and such Selling Stockholders, such Selling Stockholders will pay all taxes, if any, on the transfer and sale, respectively, of the Securities being sold by such Selling Stockholder, and the fees of counsel to such Selling Stockholder and all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for in this Agreement, provided, however, that such Selling Stockholder severally will reimburse the Company for any reimbursement made by the Company to the Underwriters pursuant to Section 4(a)(viii) hereof to the extent such reimbursement resulted from the willful failure or refusal on the part of such Selling Stockholder to comply under the terms or fulfill any of the conditions of this Agreement.
(ii) If this Agreement is terminated by the Underwriters because of any willful failure, refusal or inability on the part of such Selling Stockholder to perform any agreement to be performed by such Selling Stockholder, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by such Selling Stockholder is not fulfilled, such Selling Stockholder will reimburse the several Underwriters for all out-of-pocket disbursements (including fees and disbursements of counsel for the Underwriters) incurred by the Underwriters in connection with their investigation, preparing to market and marketing the Securities or in contemplation of performing their obligations hereunder. Such Selling Stockholder will not in any event be liable to any of the Underwriters for loss of anticipated profits from the transactions covered by this Agreement.
(iii) The Securities to be sold by such Selling Stockholder are subject to the interest of the several Underwriters, and the obligations of such Selling Stockholder hereunder are irrevocable and shall not be terminated, except as provided in this Agreement, by any act of such Selling Stockholder, by operation of law, whether by the liquidation, dissolution or merger of such Selling Stockholder, or by the occurrence of any other event. If such Selling Stockholder should liquidate, dissolve, be a party to a merger or if any other such event should occur before the delivery of the Securities hereunder, certificates for the Securities will be delivered in accordance with the terms and conditions of this Agreement as if such liquidation, dissolution, merger, death or other event had not occurred.
(iv) Such Selling Stockholder or any of its affiliates 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 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, if effected by the Company, would be required to be disclosed in response to Item 701 of Regulation S-K.
(v) Such Selling Stockholder will immediately notify you if any event occurs, or of any change in information relating to such Selling Stockholder, which results in the Prospectus (as supplemented) including an untrue statement of a material fact relating to the Selling Stockholders or omitting to state any material fact relating to such Selling Stockholder necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(vi) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, such Selling Stockholder agrees to deliver to you prior to or at the First Closing Date a properly com
Appears in 1 contract
Sources: Underwriting Agreement (Integra Lifesciences Holdings Corp)
Covenants. The Company Each of the Seller, the Servicer, the Depositor, the Transferor, and the Issuer, each as to itself, covenants and agrees with the several Underwriters Agent and the Purchasers, through the Facility Termination Date and thereafter so long as followsany amount of the Notes shall remain outstanding or any monetary obligation arising hereunder shall remain unpaid, unless the Required Owners and the Required Purchasers shall otherwise consent in writing, that:
(a) If it shall perform in all material respects each of the Initial Registration Statement has not already been declared effective respective covenants and other agreements made by it and comply in all material respects with each of the respective terms and provisions applicable to it under any of the other Related Documents to which it is party; it shall take all reasonable action to enforce the obligations of each of the other parties (other than the Note Agent and the Purchasers) to such Related Documents which are contained therein;
(b) the Issuer and the Servicer shall furnish to the Agent a copy of each opinion, certificate, report, statement, notice or other communication (other than investment instructions) relating to the Notes which is furnished by or on behalf of it to the other or to the Indenture Trustee and furnish to the Agent, after receipt thereof, a copy of each notice, demand or other communication relating to the Notes, this Agreement or the Indenture received by the CommissionIssuer or the Servicer from the Indenture Trustee, the Company will use Depositor, the Transferor or the Seller; and (ii) such other information, documents records or reports respecting the Collateral, the Seller, the Depositor, the Transferor, the Issuer or the Servicer as the Agent may from time to time reasonably request;
(c) the Issuer shall furnish to the Agent on or before the date such reports are due under the Indenture copies of each of the reports and certificates required by Sections 3.9 and 3.14 of the Indenture;
(d) Each of the Seller and the Servicer shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its best efforts material obligations of whatever nature (including tax obligations), except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and appropriate reserves with respect thereto have been provided on the books of the Seller or the Servicer, as applicable;
(e) Each of the Seller and the Servicer shall continue to cause engage in business of the Initial Registration Statement same general type as now conducted by it and preserve, renew and keep in full force and effect its existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business and comply with all Requirements of Law, except where the failure to be so qualified or comply could not reasonably be expected to have a material adverse affect on the Seller or the Servicer, as applicable;
(f) the Issuer, the Depositor, the Transferor, the Seller and the Servicer shall at any time from time to time during regular business hours, on reasonable notice to the Issuer, the Depositor, the Transferor, the Seller or the Servicer, as the case may be, permit the Agent, or its agents or representatives to:
(i) examine all books, records and documents (including computer tapes and disks) in its possession or under its control with respect to the Related Documents or the Receivables; and
(ii) visit its offices and property for the purpose of examining such materials described in clause (i) above.
(g) the Issuer and the Servicer shall furnish to the Agent, promptly after obtaining actual knowledge of the occurrence of any Default or Event of Default, a certificate of the Issuer or an appropriate officer of the Servicer, as the case may be, setting forth the circumstances of such Default or Event of Default and any post-effective amendments thereto action taken or proposed to become effective be taken by the Issuer or the Servicer with respect thereto;
(h) it shall timely make all payments, deposits or transfers to be made by it and give all instructions to transfer required to be given by it under this Agreement and the Indenture;
(i) the Seller, the Depositor, the Transferor, Issuer and the Servicer shall execute and deliver to the Agent or the Indenture Trustee all such documents and instruments and do all such other acts and things as promptly may be necessary or reasonably required by the Agent or the Indenture Trustee to enable any of them to exercise and enforce their respective rights under the Related Documents and to realize thereon, and record and file and rerecord and refile all such documents and instruments, at such time or times, in such manner and at such place or places, all as possible; may be necessary or required by the Company will notify you promptly Indenture Trustee or the Agent to validate, preserve, perfect and protect the position of the time when Indenture Trustee under the Initial Registration Statement Indenture, provided no such action shall be inconsistent with the Indenture or contrary to instructions of the Indenture Trustee;
(j) neither the Seller, the Depositor, the Transferor, the Issuer nor the Servicer will consolidate with or merge into any post-effective amendment other Person or convey or transfer its properties and assets substantially as an entirety to any Person, except in the case of the Depositor, the Transferor, the Servicer or the Seller, (i) in accordance with Section 5.2 of the Sale and Servicing Agreement and (ii) with the prior written consent of the Required Owners and the Required Purchasers, provided that, without such consent, OAC may merge into Oakwood Acceptance Corporation, LLC, a Delaware limited liability company;
(k) OAC will not resign as Servicer, unless (A) the performance of its duties under the Sale and Servicing Agreement is no longer permissible pursuant to Requirements of Law and there is no reasonable action which it could take to make the performance of such duties permissible under such Requirements of Law, or (B) the Required Owners and the Required Purchasers shall have consented thereto;
(l) OAC shall furnish to the Initial Registration Statement has become effective Agent:
(1) as soon as available and in any event within 45 days after the end of each fiscal quarter of Oakwood Homes Corporation, a North Carolina corporation ("OHC"), the balance sheet of OHC and its consolidated subsidiaries as of the end of such quarter and statements of income and retained earnings of OHC and its consolidated subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by the chief financial officer of OHC and (2) as soon as available and in any event within 90 days after the end of each fiscal year of OHC, a copy of the annual report on Form 10-K for such year for OHC and its consolidated subsidiaries, containing financial statements for such year accompanied by an audit report of a nationally recognized firm of independent certified public accountants (or any supplement such other firm of independent certified public accountants acceptable to the Prospectus has Agent) which report shall be unqualified as to going concern and scope of audit and shall state the opinion that such consolidated financial statements present fairly the financial position of OHC and each of its consolidated subsidiaries at the dates indicated and the results of their operations and their cash flow for the periods indicated in conformity with generally accepted accounting principles and that the examination had been filed made in accordance with generally accepted auditing standards; and
(ii) Such other information (including financial information), documents, records or reports respecting the Notes, the Trust Estate, the Seller, the Servicer, the Depositor or the Issuer as the Agent may from time to time reasonably request.
(m) Neither the Seller nor the Servicer shall make, or permit any Person to make, any material amendment, modification or change to, or provide any material waiver under, the Indenture or the other Related Documents without the prior written consent of the Agent.
(n) Each of the Seller and the Servicer will comply in all material respects with the Credit and Collection Policy in regard to each Receivable and the related Contract. Each of any request by the Commission for Seller and the Servicer shall (i) notify the Agent ten (10) days prior to any amendment of or supplement change in the Credit and Collection Policy and (ii) obtain the Agent's consent prior to any such amendment or change; provided that the Seller and the Servicer may immediately implement any changes (and provide notice to the Initial Registration Statement or Prospectus or additional information; if Agent subsequent thereto) as may be required under applicable law from time to time upon the Company has elected to rely on Rule 430A reasonable determination of the Rules Seller or the Servicer, as the case may be. The underwriting, credit scoring, approval, servicing and Regulations, collection policies and procedures applied to Receivables and 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 related Contracts originated by independent third parties shall be in accordance with the provisions ofCredit and Collection Policy and in no event shall such Receivables and related Contracts be underwritten, Rules 424(b) credit scored, approved, serviced and 430A of collected more leniently or less stringently than those procedures applied to Receivables and related Contracts originated by 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 Seller or an Affiliate. The Seller and the Rule 462(bServicer shall (i) Registration Statement has not yet been filed and become effective, notify the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(bAgent ten (10) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 days 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 any Preliminary Prospectus, retail installment sales contract related to the General Disclosure Package, Financed Housing that contains material changes from the Prospectus or any Issuer Free Writing Prospectus, form of the suspension Contract as of the qualification of Closing Date and (ii) obtain the Securities for offering or sale in any jurisdiction, or of Agent's consent prior to using such retail installment sales contract; provided that the initiation or threatening of any proceeding for any such purpose; Seller and the Company will promptly use its best efforts to prevent the issuance of Servicer may immediately implement 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) changes (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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating provide notice to the Securities is Agent subsequent thereto) as may be required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as applicable law from time to time in forceupon the reasonable determination of the Seller or the Servicer, so far as necessary the case may be.
(o) The Seller shall cause to permit be delivered to the continuance of sales of or dealings in the Securities as contemplated by the provisions hereofAgent, the General Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus within thirty (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package30) would include an untrue statement days following receipt of a material fact or omit to state a material fact necessary to make written request from the statements thereinAgent, 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the CompanySeller, the written report of a review conducted by an independent auditor acceptable to the Agent of a random sampling of Contracts that are held by the Custodian, together with all related Contract Documents held by the Custodian.
(p) The Servicer shall instruct all Obligors to cause all Collections to be deposited directly to a Lock-Box Account. In the event either the Seller or the Servicer receives any Collections, the Seller or the Servicer, as the case may be, shall hold in trust, and deposit, immediately, but in any event not later than one (1) Business Day of its receipt thereof, to a Lock-Box Account all such Collections.
(q) The Seller and the Servicer shall notify the Agent within five (5) Business Days of obtaining knowledge thereof, of any fraudulent activity or theft in the origination or servicing of Receivables or the related Contracts that results or may result in a loss of at least $250,000.
(r) Except as otherwise provided herein, neither the Seller, the Servicer, the Depositor, the Transferor nor the Issuer will sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Lien upon .(or the filing of any financing statement) or with respect to, any Receivable or related Contract, or upon or with respect to any Lock-Box Account to which any Collections of any Receivable are sent, or assign any right to receive income in respect thereof.
(s) Except as otherwise permitted in the Sale and Servicing Agreement or with the prior written consent of the Agent, neither the Seller nor the Servicer will extend, amend or otherwise modify the terms of any Receivable, or amend, modify or waive any term or condition of any Contract related thereto.
(t) Neither the Seller nor the Servicer will add or terminate any bank as a Lock-Box Bank or any account as a Lock-Box Account to or from those listed in Schedule III to the Sale and Servicing Agreement or make any change in its instructions to Obligors regarding payments to be made to any Lock-Box Account, unless (i) such instructions are to deposit such payments to another existing Lock-Box Account or (ii) the Agent shall have received written notice of such addition, termination or change at least 30 days prior thereto.
(u) Neither the Seller, the Depositor, the Transferor nor the Issuer will change its name, identity or structure or its chief executive office, unless at least 30 days prior to the effective date of any such change such person delivers to the Indenture Trustee and the Agent UCC financing statements, executed by such Person necessary to reflect such change and to continue the perfection of the Indenture Trustee's interest in the Receivables.
(v) Each of the Depositor and the Transferor covenants and agrees with the Agent and the Purchasers that, unless the Agent shall otherwise consent in writing:
(i) It shall conduct its business solely in its own name through its duly authorized officers or agents so as not to correct mislead others as to the identity of the entity with which such statement persons are concerned, and shall avoid the appearance that it is conducting business on behalf of any Affiliate thereof or omission that its assets are available to pay the creditors of OHC or effect any Affiliate thereof (other than as expressly provided herein).
(ii) It shall maintain corporate records and books of account separate from those of OHC and any Affiliate (other than, in the case of the Depositor, itself) thereof.
(iii) It shall obtain proper authorization for all action requiring such complianceauthorization.
(iv) It shall pay its own operating expenses and liabilities from its own funds.
(v) In the case of the Depositor, the annual financial statements of OHC shall disclose the effects of the transactions contemplated hereby in accordance with generally accepted accounting principles.
(vi) Its resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by it as part of its official records.
(vii) It shall maintain an arm's-length relationship with OHC and its Affiliates (other than, in the case of the Depositor, itself), and shall not hold itself out as being liable for the debts of OHC or any of its Affiliates (other than, in the case of the Depositor, itself).
(viii) It shall keep its assets and liabilities separate from those of all other entities other than as permitted herein.
(ix) It shall not maintain bank accounts or other depository accounts to which any Affiliate is an account party or from which any Affiliate has the power to make withdrawals.
(x) It shall not amend, supplement or otherwise modify its organizational documents, except in accordance therewith and with the prior written consent of the Agent.
(xi) It shall not create, incur, assume or suffer to exist any indebtedness on which it is obligated, except as contemplated by this Agreement and the other Related Documents. It shall not assume, guarantee, endorse or otherwise be or become directly or contingently liable for the obligations of any Person by, among other things, agreeing to purchase any obligation of another Person (other than the Receivables), agreeing to advance funds to such Person or causing or assisting such Person to maintain any amount of capital. It shall not be party to any indenture, agreement, mortgage, deed of trust or other instrument other than this Agreement and the other Related Documents.
(xii) It shall not enter into, or be a party to any transaction with any of its Affiliates, except as contemplated by this Agreement and the other Related Documents.
(xiii) It shall observe all procedures required by its organizational documents and preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation and qualify and remain qualified in good standing in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualifications would materially adversely affect the interests hereunder of the Purchasers or the Agent or its ability to perform its obligations hereunder.
(xiv) It shall not form, or cause to be formed, any subsidiaries; or make or suffer to exist any loans or advances to, or extend any credit to, or make any investments (by way of transfer of property, contributions to capital, purchase of stock or securities or evidences of indebtedness (other than the Receivables), acquisition of the business or assets, or otherwise) in, any Affiliate or any other
Appears in 1 contract
Sources: Class a Note Purchase Agreement (Oakwood Homes Corp)
Covenants. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(ai) If During the Initial Registration Statement has not already been declared effective 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 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 CommissionUnderwriter (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 will use its best efforts shall furnish to cause the Initial Registration Statement Underwriter for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Underwriter or Prospectus or additional information; if the Company has elected its counsel reasonably objects. Subject to rely on Rule 430A this Section 4(i), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Underwriter and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofUnderwriter, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byUnderwriter may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(bii) The Company will advise youthe 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 thereto, or preventing or suspending the use of any Preliminary Prospectus, the General 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 or, to the Company’s knowledge, 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), 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.
(ciii) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you the Underwriter and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 1 contract
Sources: Purchase Agreement (inContact, Inc.)
Covenants. The Company Purchaser hereby covenants and agrees with the several Underwriters Company as follows:
: (ai) If prior to the Initial effective date of the Registration Statement has not already been declared effective by referenced in Section 7.1(a) below (the Commission"Effective Date"), the Company will use its best efforts to cause the Initial Registration Statement and Purchaser shall not transfer any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations Shares except in compliance 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 and the Rule 462(brules and regulations promulgated thereunder, and any transferee of Shares prior to the Effective Date shall agree in advance in a writing acceptable to the Company to be subject to all of the provisions of this Agreement with respect to the Shares; and (ii) Registration Statement has not yet been filed and become effectivecommencing as of the Effective Date, the Purchaser shall not make any sale of the Shares, if any, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Purchaser acknowledges and agrees that on and after the Effective Date, such Shares are not transferable on the books of the Company will prepare and file unless the Rule 462 Registration Statement with certificate submitted to the Commission within transfer agent evidencing the time period required Shares is accompanied by a separate purchaser's certificate: (1) in the form of EXHIBIT B hereto, (2) executed by the Purchaser or by an officer of, or other authorized person designated by, the Purchaser, and otherwise (3) to the effect that (A) the Shares have been sold in accordance with the provisions of, Rule 462(bRegistration Statement and (B) and the Securities Act; requirement of delivering a current prospectus has been satisfied. The Purchaser acknowledges that there may occasionally be times when the Company will prepare and file with must suspend the Commission, promptly upon your request, any amendments or supplements use of the prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the Securities and Exchange Commission (the 5. 9 "Commission"), or Prospectus that, based on until such time as the advice of counsel, may be necessary or advisable in connection Company has filed an appropriate report with the distribution of Commission pursuant to the Securities by Exchange Act of 1934, as amended. The Purchaser hereby covenants that it will not sell any Shares pursuant to said prospectus during the Underwriters; and period commencing at the time at which the Company will furnish gives the Representatives 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 Purchaser 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 any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification use of said prospectus and ending at the time the Company gives the Purchaser notice that the Purchaser may thereafter effect sales pursuant to said prospectus. The Purchaser further covenants to promptly notify the Company 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 of 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 CommissionShares.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Amylin Pharmaceuticals Inc)
Covenants. The Company covenants and agrees with the several Underwriters each Underwriter as follows:
(a) If Immediately following the Initial Registration Statement has not already been declared effective by the Commissionexecution of this Agreement, the Company will use its best efforts (x) prepare the Final Prospectus that complies with the Securities Act and the Securities Act Regulations and which sets forth the aggregate face amount of the Certificates and their terms not otherwise specified in the base prospectus relating to cause all offerings of pass through certificates under the Initial Registration Statement Statement, the name of each Underwriter participating in the offering and the aggregate 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 post-effective amendments thereto 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 become effective 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 Commission for filing pursuant to Rule 424 and will furnish to the Underwriters as promptly many copies of the Final Prospectus as possible; you shall reasonably request.
(b) 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 or the Securities Act Regulations, the Company will notify promptly advise you promptly of (i) the time when the Initial Registration Statement or effectiveness of any post-effective amendment to the Initial Registration Statement has become effective or Statement, (ii) the transmittal to the Commission for filing of any supplement to the Final Prospectus has been filed and of or any document that would as a result thereof be incorporated by reference in the Final Prospectus, (iii) any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 Final Prospectus or Prospectus for any additional information relating thereto or to which you shall reasonably object any document incorporated by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
reference therein, (biv) 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, Statement or any post-effective amendment thereto the institution or preventing or suspending the use threatening of any Preliminary Prospectusproceeding for that purpose, and (v) the General Disclosure Package, receipt by the Prospectus or Company of any Issuer Free Writing Prospectus, of notification with respect to the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, jurisdiction or of the initiation institution or threatening of any proceeding for any such purpose; and the . The Company will promptly use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain its as soon as possible the 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 Commissionthereof.
(c) (A) Within the If, at any time during which when a prospectus (assuming the absence of or in lieu thereof, a notice referred to in Rule 172173(a)) relating to the Securities Certificates is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Act 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 General Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Final Prospectus (as then amended or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) supplemented would include an any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances then existingunder which they were made, not misleading, or if during such period it is shall be necessary to amend the Registration Statement or supplement the Final Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities ActAct or the Securities Act Regulations, the Company will promptly notify you prepare and will amend file with the Registration Statement or supplement the Prospectus Commission, subject to paragraph (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Packaged) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.this
Appears in 1 contract
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows: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 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 RBC Capital Markets, LLC 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 Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(ab) If the Initial Registration Statement The Company has not already distributed, and without the prior consent of RBC Capital Markets, LLC 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 Company’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 Company and RBC Capital Markets, LLC, 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 declared effective consented to by the CommissionCompany and RBC Capital Markets, LLC is listed on Schedule II(a) or Schedule II(b) hereto. The Company 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 Company 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 Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will use its best efforts give prompt notice thereof to RBC Capital Markets, LLC and, if requested by RBC Capital Markets, LLC, 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 Company 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 Initial Registration Statement and stabilization or manipulation of the price of any post-effective amendments thereto to become effective as promptly as possible; securities of the Company.
(d) The Company will notify you advise the Representatives promptly of the time (i) when the Initial Registration Statement or any post-effective amendment to thereto shall have become effective; (ii) of receipt of any comments from the Initial Commission; (iii) of any request of the Commission for amendment of the Registration Statement has become effective or any for supplement to the Prospectus has been filed and of any request by the Commission or for any amendment or supplement to the Initial 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 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(iv) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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, Statement or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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 institution of any proceeding proceedings for any such that purpose; and the . The Company will promptly use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain its withdrawal as soon as possible the lifting thereof, if issued.
(e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such a stop order should 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 issued. Additionallyreasonably required for that purpose, provided, the Company agrees that 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 comply with the provisions of Rules 424(b) is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and 430Afile such statements, reports, and other documents, as applicableare 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 Company 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 Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Securities Act Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, if requested by the Representatives, three copies of the executed Registration Statement and all amendments thereto including all exhibits filed therewith, and will use its reasonable efforts deliver to confirm the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that any filings made by may reasonably be requested) and of all amendments thereto, as the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the CommissionRepresentatives may reasonably request.
(cg) (A) Within The Company, during the time during which a prospectus (assuming period when the absence of Rule 172) relating to the Securities Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by any Underwriter or dealer (the “Prospectus Delivery Period”), Exchange Act and the Company Rules and Regulations and will use its best efforts to otherwise comply with all requirements imposed upon it by the Securities Act, as now Act and hereafter amended, and by the Rules and Regulations, as from time to time in forceand the Exchange Act, and the Rules and Regulations, so far as necessary to permit the continuance completion of sales the distribution of or dealings in the Securities Shares as contemplated by the provisions hereof, the General Disclosure Package in this Agreement and the Prospectus. If during such the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus 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 Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(h) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) , taken as a whole, 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 then existing, under which they were made at such time 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 investors, the General Disclosure Package) to comply with the Securities Act, the Company will (i) notify promptly notify you and will the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as Package to correct such statement or omission omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(i) The Company 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.
(j) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(k) The Company will not offer, sell, short sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any shares of Common Stock or securities convertible into or exchangeable or exercisable for or derivative of shares of Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing for a period of 90 days after the date of the Prospectus, otherwise than hereunder or with the prior written consent of the Representatives; provided, that this provision will not restrict the Company from (i) issuances pursuant to the exercise of options outstanding on the date of the Prospectus; (ii) grants of stock options and restricted stock and other securities issuances pursuant to the terms of a plan in effect on the date of the Prospectus; (iii) issuances pursuant to the exercise of such complianceoptions; (iv) issuances pursuant to the Company’s 401(k) plan, (v) the filing of registration statements on Form S-8 and amendments thereto in connection with those stock options or the Company’s stock plans in existence on the date of the Prospectus as described in the Prospectus and the Disclosure Package, (vi) grants of Common Stock as employee length service awards, (vii) grants of Common Stock or restricted stock units to members of the Company’s board of directors as a portion of compensation for service on the Company’s board of directors, and (viii) issuances pursuant to dividend reinvestment plans and the filing of registration statements and amendments thereto in connection with the sale and issuance of securities under such plans.
(l) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the NYSE.
(m) The Company has caused each executive officer and director of the Company to furnish to you, on or prior to the date of this Agreement, a letter or letters, in the form attached as Exhibit B (the “Lockup Agreements”).
(n) The Company 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.
(o) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(p) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(q) Prior to the termination of the offering of the Shares by the Underwriters, the Company (i) will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and (ii) will use its reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
Appears in 1 contract
Sources: Underwriting Agreement (Unitil Corp)
Covenants. (a) The Company covenants and agrees with the several Underwriters Underwriter as follows:
(ai) If During the Initial 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 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 has not already been declared effective by Statement, including any Rule 462(b) Registration Statement), the CommissionTime of Sale Disclosure Package or the Prospectus, the Company will use its best efforts shall furnish to cause the Initial Registration Statement Underwriter for review a copy of each such proposed amendment or supplement, and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly of the time when the Initial Registration Statement or shall not file any post-effective amendment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any such proposed amendment or supplement to which the Initial Registration Statement Underwriter or Prospectus or additional information; if counsel to the Company has elected Underwriter reasonably object. Subject to rely on Rule 430A this Section 4(a)(i), immediately following execution of the Rules and Regulationsthis Agreement, the Company will prepare and file a the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information omitted therefrom pursuant to Rule 430A of as may be required by the Securities Act or the Rules and Regulations with or as the Commission within Underwriter and the time period required byCompany may deem appropriate, and otherwise in accordance with if requested by the provisions ofUnderwriter, Rules 424(b) and 430A an Issuer Free Writing Prospectus containing the selling terms of the Rules Securities and Regulations; if such other information as 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required byUnderwriter may deem appropriate, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file or transmit for filing with the Commission, promptly upon your requestin accordance with Rule 424(b) or Rule 433, any amendments or supplements to as the Registration Statement or Prospectus thatcase may be, based on the advice of counsel, may be necessary or advisable in connection with the distribution copies of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filingeach Issuer Free Writing Prospectus.
(bii) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, (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 Base Prospectus, 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 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, or (E) 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 the Base Prospectus, the General 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 and 430A430B, 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 CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
(ciii) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs 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 General 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 or, if during such period it is necessary or appropriate in the opinion of the Company or its counsel or the Underwriter or its counsel to amend the Registration Statement or supplement the Prospectus (or or, if the Prospectus is not yet available to prospective investorspurchasers, the General 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 you and will amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the General 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.
Appears in 1 contract
Sources: Underwriting Agreement (Optimer Pharmaceuticals Inc)
Covenants. The Company covenants and (a) Until the termination of this Agreement in accordance with Section 7, Stockholder agrees with the several Underwriters as follows:
(ai) If At any meeting of stockholders of the Initial Registration Statement has not already been declared effective 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 CommissionCompany 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) unless, within 14 days after the staff of the SEC has indicated to the Company that it either (i) will not review the Proxy Statement or (ii) (if the Proxy Statement is reviewed) has no further comments, the Company will use its best efforts has not mailed the Proxy Statement to cause the Initial Registration Statement 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 any post-effective amendments thereto to become effective as promptly as possible; no such proxy is given) if a Takeover Proposal has been made and the Board of Directors of the Company will notify you promptly (or the Special 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 time when Merger Agreement or (ii) considering in accordance with Section 4.2(b) of the Initial Registration Statement or any post-effective amendment Merger Agreement whether to terminate the Initial Registration Statement has become effective or any supplement Merger Agreement pursuant to the Prospectus has been filed 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 of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; effect if the Company has elected to rely on Rule 430A of the Rules and Regulations, 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 Merger Agreement is amended or otherwise modified in accordance with the provisions 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 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, Rules 424(b) and 430A the Subject Shares to any person other than pursuant to the terms of the Rules and Regulations; if the Company has elected Merger, except that Stockholder shall be permitted to rely upon Rule 462(b) Transfer all or a portion of the Rules Subject Shares to any of its Affiliates, including any direct or indirect wholly owned subsidiary, on the terms set forth in Section 6 of this Agreement, (B) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Alternative Transaction or (C) convert any shares of Company Class A Common Stock into shares of Company Class B Common Stock.
(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 Regulations to increase do, or cause to be done, and to assist and cooperate with the size other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. Without in any way limiting the foregoing sentence, and in full consultation with Parent, Stockholder shall use all reasonable efforts to provide, or cause its own parents, affiliates and its and their directors, officers and employees to provide, in the most expeditious manner practicable, any data, documents or other sources of information that are requested voluntarily or required by the U.S. Department of Justice, the Federal Communications Commission, the European Commission or any other Governmental Entity in order to complete at as early an investigative stage as possible each such Governmental Entity’s evaluation and clearance of the offering registered transactions contemplated in the Merger Agreement.
(vi) Stockholder shall not exercise any right that it may have under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments Section 3 or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution 4 of the Securities by the Underwriters; and the Company will furnish the Representatives 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 filing1999 Stockholders’ Agreement.
(b) The Company will advise youIn consultation with Parent, promptly after it Stockholder 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 General 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; its commercially reasonable efforts to provide Parent and the Company will promptly use its best efforts any relevant information that is not commercially sensitive (including through access to prevent the issuance of any stop order or relevant employees) to obtain its withdrawal if such a stop order should be issued. Additionally, assist Parent and the Company agrees in resolving any investigation or other inquiry or proceeding initiated by any Governmental Authority or private party with respect to the Stockholder’s operations that it shall comply relate to the Company or with respect to the provisions of Rules 424(bCompany’s operations in any country with respect to which there is a Country Representative Agreement in effect between the Stockholder (or any controlled Affiliate) 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(or any Affiliate). For purposes of this Agreement, Rule 433 or Rule 462 were received in Country Representative Agreement means any agreement between the Company, on the one hand, and a timely manner by the CommissionCountry Representative.
(c) Stockholder agrees to negotiate in good faith with Parent and if applicable the Company with respect to Stockholder’s commercial relationship with the Company including, without limitation, with respect to interconnection between the Company Network and the Parent Network and with respect to any physical migration of the Company’s core bandwidth, customer access circuits and customers to the Parent Network. For purposes of this Agreement, Company Network shall mean the network managed, owned and operated by the Company or used by Stockholder in support of the Company’s products and services; and Parent Network shall mean the network managed, owned and operated by Parent.
(d) (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(d)(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 $35.0 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 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(d), the Profit of Stockholder from any Alternative Transaction shall equal (A) Within the time during which a prospectus aggregate consideration received by Stockholder pursuant to such Alternative Transaction, valuing any non-cash consideration (assuming including any residual interest in the absence Company) at its fair market value on the date of Rule 172such consummation, plus (B) relating 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 Securities is required date of such consummation, less (C) the fair market value of the aggregate consideration that would have been issuable or payable to be delivered under Stockholder if it had received the Securities Act by 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 Underwriter or dealer 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 “Prospectus Delivery Period”Original Merger Consideration), Stockholder shall pay to Parent on demand an amount in cash equal to the Company will use its best efforts to comply with all requirements imposed upon it by product of (i) the Securities Actnumber of Subject Shares of Stockholder and (ii) 100% of the excess, if any, of (A) the per share cash consideration or the per share fair market value of any non-cash consideration, as now and hereafter amendedthe case may be, and received 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 General Disclosure Package and the Prospectus. If during such period any event occurs Stockholder as a result of which the Prospectus 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(d), 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 be 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(d)(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, however, that if the Prospectus is not yet available parties are unable to prospective purchasersagree within two Business Days after the date of such event as to such investment banking firm, then the General Disclosure Packageparties shall each select one firm, 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) would include 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 all of the consideration received by Stockholder in an untrue statement Alternative Transaction or as part of a material fact or omit the Merger Consideration consists of non-cash consideration, then Stockholder shall have the option of satisfying up to state a material fact necessary to make the statements therein, same proportion of its obligations under this Section 3(d) as the non-cash consideration represented of the total consideration in the light Alternative Transaction or the total Merger Consideration through the delivery of such non-cash consideration to Parent based on the circumstances then existingfair market value thereof. Any payment of Profit under this Section 3(d) shall (x) if paid in cash, not misleadingbe paid by wire transfer of same day funds to an account designated by Parent and (y) if paid through a transfer of non-cash consideration, be paid through delivery of such non-cash consideration to Parent, suitably endorsed for transfer.
(f) To the extent permitted by applicable law, Stockholder hereby waives any rights to appraisal or if during such period rights to dissent from the Merger that it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliancemay have under applicable law.
Appears in 1 contract
Sources: Stockholder Agreement (Bt Group PLC)
Covenants. The (a) So long as any amount due under this Note is outstanding and until indefeasible payment in full of all amounts payable by the Company covenants and agrees with the several Underwriters as followshereunder:
(ai) If The Company shall and shall cause each of its Subsidiaries to (A) carry on and conduct its business in substantially the Initial Registration Statement has same manner and in substantially the same fields of enterprise as it is presently conducting, (B) do all things necessary to remain duly organized, validly existing, and in good standing as a domestic corporation under the laws of its state of incorporation and (C) maintain all requisite authority to conduct its business in those jurisdictions in which its business is conducted.
(ii) The Company shall promptly notify the Holder in writing of (A) any change in the business or the operations the Company or any Subsidiary which could reasonably be expected to have a Material Adverse Effect, and (B) any information which indicates that any financial statements which are the subject of any representation contained in the Transaction Documents, or which are furnished to the Holder pursuant to the Transaction Documents, fail, in any material respect, to present fairly, as of the date thereof and for the period covered thereby, the financial condition and results of operations purported to be presented therein, disclosing the nature thereof.
(iii) The Company shall promptly notify the Holder of the occurrence of any Event of Default or any event which, with the giving of notice, the lapse of time or both would constitute an Event of Default, which notice shall include a written statement as to such occurrence, specifying the nature thereof and the action (if any) which is proposed to be taken with respect thereto.
(iv) The Company shall promptly notify the Holder of any action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency against the Company or any Subsidiary or to which the Company or any Subsidiary may be subject which alleges damages in excess of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$100,000).
(v) The Company shall promptly notify the Holder of any default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which the Company or any Subsidiary is a party which default could reasonably be expected to have a Material Adverse Effect.
(vi) The Company shall and shall cause each Subsidiary to pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or property, except those that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside.
(vii) The Company shall and shall cause each Subsidiary to all times maintain with financially sound and reputable insurance companies insurance covering its assets and its businesses in such amounts and covering such risks (including, without limitation, hazard, business interruption and public liability) as is consistent with sound business practice and as may be obtained at commercially reasonable rates.
(viii) The Company shall and shall cause each Subsidiary to comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which they may be subject except where the failure to so comply could not already been declared effective by the Commissionreasonably be expected to have a Material Adverse Effect.
(ix) The Company shall and shall cause each Subsidiary to use commercially reasonable efforts to do all things necessary to maintain, preserve, protect and keep its properties in good repair, working order and condition and use commercially reasonable efforts to make all necessary and proper repairs, renewals and replacements so that its business carried on in connection therewith may be properly conducted.
(x) At its own expense, the Company will use shall and shall cause each Subsidiary to make, execute, endorse, acknowledge file and/or deliver any documents and take all actions necessary or required to maintain its best efforts ownership rights in its Intellectual Property, including, without limitation, (i) any action reasonably required to cause protect the Initial Registration Statement Intellectual Property in connection with any infringement, suspected infringement, passing off, act of unfair competition or other unlawful interference with the rights of the Company or any Subsidiary in and to such Intellectual Property, and (ii) any registrations with the United States Patent & Trademark Office and any post-effective amendments thereto to become effective as promptly as possible; corresponding foreign patent and/or trademark office required for the Company will notify you promptly of the time when the Initial Registration Statement or any postSubsidiary to carry on its business as presently conducted and as presently proposed to be conducted. Except for non-effective amendment to exclusive licenses granted in the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed and ordinary course of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsbusiness, the Company will prepare shall not and file a Prospectus containing shall cause each Subsidiary not to transfer, assign or otherwise convey the information omitted therefrom pursuant Intellectual Property, any registrations or applications thereof and all goodwill associate therewith, to Rule 430A of any person or entity.
(xi) Promptly after 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveoccurrence thereof, the Company will prepare shall and file shall cause each Subsidiary to inform the Rule 462 Registration Statement Holder of all material developments, including without limitation (i) entering into material agreements outside the ordinary course of business consistent with the Commission within the time period required bypast practice, and otherwise in accordance with the provisions of, Rule 462(b(ii) and the Securities Act; any issuance of debt securities by the Company will prepare and file with or any Subsidiary, (iii) the Commissionincurrence of any Indebtedness by the Company or any Subsidiary, promptly upon your request, any amendments or supplements to (iv) a change in the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution number of the Securities by Board of Directors of the Underwriters; and Company, (v) a sale, lease or transfer of any material portion of the assets of the Company will furnish the Representatives or any Subisdiary and counsel for the Underwriters a copy (v) any change in ownership of any proposed amendment or supplement to Subsidiary (specifying the Registration Statement or Prospectus details of any such change, including the identity and will not file ownership amount of 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 filingnew owner).
(b) So long as any amount due under this Note is outstanding and until indefeasible payment in full of all amounts payable by the Company hereunder:
(i) The Company will advise youshall not and shall cause each Subsidiary not to create, promptly after it incur, guarantee, issue, assume or in any manner become liable in respect of any Indebtedness, other than Permitted Indebtedness.
(ii) The Company shall receive notice not and shall cause each Subsidiary not to create, incur, assume or obtain knowledge thereofsuffer to exist any Lien upon any of its property, whether now owned or hereafter acquired other than (i) Liens created pursuant to the Bank Control Agreement and (ii) Permitted Liens. The Company shall not be bound by any agreement which limits the ability of any Company to grant Liens.
(iii) The Company shall not and shall cause each Subsidiary not to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates other than a wholly owned Subsidiary.
(iv) The Company shall not, and shall cause each of its Subsidiaries not to, directly or indirectly, declare or pay any dividends on account of any shares of any class or series of its capital stock now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of its capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or pay any interest, premium if any, or principal of any Indebtedness or redeem, retire, defease, repurchase or otherwise acquire any Indebtedness (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other payment in respect thereof or agree to do any of the issuance by the Commission of any stop order suspending the effectiveness foregoing (each of the Registration Statementforegoing is herein called a “Restricted Payment”); provided, that (i) the Company may make payments of interest, premium if any, and principal of the Notes in accordance with the terms hereof and (ii) provided that no Event of Default or any post-effective amendment thereto or preventing or suspending event which, with the use giving of any Preliminary Prospectusnotice, the General Disclosure Package, the Prospectus lapse of time or any Issuer Free Writing Prospectus, both would constitute an Event 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; Default has occurred 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. Additionallyis continuing, the Company agrees that it shall comply with the provisions and its Subsidiaries may make regularly scheduled payments of Rules 424(binterest and principal of any Permitted Indebtedness, (iii) and 430A, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made Subsidiary directly or indirectly wholly owned by the Company under Rule 424(bmay pay dividends on its capital stock and (iv) the Company may repurchase capital stock from a former employee in connection with the termination or other departure of such employee, strictly in accordance with the terms of any agreement entered into with such employee and in effect on the Closing Date (as defined in the Purchase Agreement), Rule 433 provided that (A) such repurchase is approved by a majority of the Board, (B) payments permitted under this clause (iv) shall not exceed $1,000,000 in the aggregate, and (C) no such payment may be made if an Event of Default or Rule 462 were received in a timely manner by an event which, with the Commissiongiving of notice, the lapse of time or both would constitute an Event of Default has occurred and is continuing or would result from such payment.
(cv) The Company shall not and shall cause each Subsidiary not to, directly or indirectly, engage in any new line of business.
(vi) The Company shall not and shall cause each Subsidiary not to make or own any Investment in any Person, including without limitation any joint venture, other than (A) Within the time during which a prospectus Permitted Investments, (assuming the absence of Rule 172B) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer operating deposit accounts with banks, (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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 C) Hedging Agreements entered into in the Securities as contemplated by the provisions hereof, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense ordinary course of the Company’s financial planning and not for speculative purposes and (D) so investments by the Company in the capital stock of any wholly owned Subsidiary.
(vii) The Company shall not and shall cause each Subsidiary not to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to correct any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Company or any Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person, or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by the Company or any Subsidiary to any Person in connection with such statement lease.
(viii) The Company shall not and shall cause each Subsidiary not to settle, or omission agree to indemnify or effect such compliancedefend third parties against, any material lawsuit, except as may be required by judicial or regulatory order or by agreements entered into prior to the date hereof on a basis consistent with past practice. A material lawsuit shall be any lawsuit in which the amount in controversy exceeds $250,000. The provisions of this Section 7(b)(viii) shall not apply to commercial indemnities entered into by the Company or any Subsidiary in the ordinary course of business consistent with past practices.
(ix) The Company shall not and shall cause each Subsidiary not to amend its bylaws, certificate of incorporation or other charter document in a manner adverse to the Holder.
Appears in 1 contract
Sources: Purchase Agreement (Viryanet LTD)
Covenants. The Company Each of AmeriCredit, AFC and the Issuer, severally covenants and agrees agrees, in each case as to itself individually or in its capacity as the Seller or Servicer, as applicable, each with respect to itself only, that through the several Underwriters Termination Date and thereafter so long as followsany amount of the Class A Principal Balance shall remain outstanding or any monetary obligation arising hereunder shall remain unpaid, unless the Required Class A Owners and the Required Class A Purchasers shall otherwise consent in writing, that:
(a) If Each of the Initial Registration Statement has Issuer, AmeriCredit, AFC, the Seller and the Servicer shall perform in all material respects each of the respective agreements, warranties and indemnities applicable to it under the Related Documents to which it is a party 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;
(b) The Issuer, the Seller and the Servicer, as applicable, shall promptly furnish to the Administrative Agent and each Agent (i) a copy of each certificate, report, statement, notice or other communication furnished by or on behalf of such Issuer, Seller or Servicer, as applicable, to the holders of Notes, to the Trustee, to the Trust Collateral Agent or to the Rating Agencies 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 such Issuer, Seller, the Existing Trust or the Servicer, as applicable, pursuant to this Agreement, the Sale and Servicing Agreement, the Indenture or the Existing Trust Note Documentation (to the extent not already been declared effective previously furnished to the Administrative Agent pursuant to the Existing Trust Note Documentation), and (ii) such other information, documents, records or reports respecting the Receivables, the other Collateral, the Issuer, the Seller, the Existing Trust or the Servicer which is in the possession or under the control of the Issuer, the Seller, the Existing Trust or the Servicer, as the case may be, as the Administrative Agent or any such Agent may from time to time reasonably request;
(c) Without limitation of the provisions of subsection 5.1(b) above, the Servicer shall furnish to the Administrative Agent and each Agent (i) with respect to each Distribution Date, a copy of the completed report furnished to the Trustee pursuant to Section 2.1(b)(i) the Sale and Servicing Agreement, (ii) a copy of each Officer’s Certificate furnished to the Trustee pursuant to Section 4.10 of the Sale and Servicing Agreement, (iii) a copy of each annual certified public accountants’ reports received by the CommissionTrustee pursuant to Section 4.11 the Sale and Servicing Agreement and (iv) a copy of each monthly servicer’s certificate, officer’s certificate, report and notice delivered by the Servicer pursuant to the Existing Trust Note Documentation (to the extent not previously furnished to the Administrative Agent pursuant to the Existing Trust Note Documentation);
(d) The Seller and the Servicer shall deliver to the Administrative Agent and each Agent (i) within 90 days following the end of each of its fiscal years, beginning with the fiscal year ending June 30, 2009, its audited consolidated balance sheet as of the end of such fiscal year, and the related audited consolidated statements of income and cash flows for such fiscal year, prepared in accordance with generally accepted accounting principles and accompanied by the opinion of its independent certified public accountants and (ii) within 45 days following the end of each of its fiscal quarters, beginning with the fiscal quarter ending March 30, 2009, its unaudited consolidated balance sheet as of the end of such fiscal quarter, and the related unaudited consolidated statements of income and cash flows for such fiscal quarter, prepared in accordance with generally accepted accounting principles;
(e) Each of the Issuer, the Company will use Seller and the Servicer shall furnish to the Administrative Agent and each Agent promptly after known to such party, information with respect to any action, suit or proceeding involving such party or any of its best efforts Affiliates by or before any court or any Governmental Authority which, if adversely determined, would have a material and adverse effect on such party or the transactions contemplated by, or such party’s ability to cause perform its obligations under, this Agreement or the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly Related Documents;
(f) Each of the Seller, the Servicer and the Issuer, as applicable, will, at any time when and from time to time during regular business hours, on at least five Business Days’ (or if a Termination Event or event or condition which, with the Initial Registration Statement passage of time or any post-effective amendment the giving of notice, or both, would become a Termination Event has occurred, one Business Day’s) notice to the Initial Registration Statement has become effective Seller, the Servicer and the Issuer, as the case may be, permit the Administrative Agent and each Agent, or any supplement to its agents or representatives, at the Prospectus has been filed cost and of any request by the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A expense of the Rules and RegulationsSeller, in the Company will prepare and file case of one visit per year or, if a Prospectus containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations Termination Event or event or condition which, with the Commission within passage of time or the time period required bygiving of notice, or both, would become a Termination Event has occurred, at any time, and otherwise at the expense of the Administrative Agent or such Agent, as the case may be, (i) to examine all books, records and documents (including computer tapes and disks) in the possession or under the control of the Seller, the Servicer or the Issuer, as the case may be, relating to the Receivables, the Existing Trust Residual Interest, the Residual Interests and the Collateral Notes, and (ii) to visit the offices and properties of the Seller, the Servicer or the Issuer, as applicable, for the purpose of examining such materials described in clause (i) above. Any information obtained by the Administrative Agent or an Agent pursuant to this subsection 5.1(f) shall be held in confidence by the Administrative Agent or such Agent, as applicable, in accordance with the provisions ofof Section 6.2 hereof, Rules 424(b) and 430A of except that the Rules and Regulations; if the Company has elected Administrative Agent or such Agent may disclose such information to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise any Class A Purchaser which shall hold such information in accordance with the provisions of, Rule 462(bof Section 6.2 hereof;
(g) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements The Servicer shall furnish to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; Administrative Agent and the Company will furnish the Representatives 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 youeach Agent, promptly after it shall receive notice or obtain knowledge thereofthe occurrence of any Termination Event, a certificate of an appropriate officer of the issuance Servicer setting forth the circumstances of such Termination Event and any action taken or proposed to be taken by the Commission of any stop order suspending Servicer or the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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 Seller 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.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.respect thereto;
Appears in 1 contract
Covenants. The Company Payor covenants and agrees with the several Underwriters that so long as followsthis Note is outstanding:
(a) If The Payor may not consolidate or merge with or into or wind up into (whether or not the Initial Registration Statement has not already Payor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
i. the Payor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Payor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been declared effective by made is a corporation organized or existing under the Commissionlaws of the United States, any state thereof, the Company will use its best efforts to cause District of Columbia, or any territory thereof (such Person, as the Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; case may be, being herein called the Company will notify you promptly “Successor Payor”);
ii. the Successor Payor, if other than the Payor, expressly assumes all the obligations of the time when the Initial Registration Statement Payor under this Note pursuant to documents or any post-effective amendment instruments in form reasonably satisfactory to the Initial Registration Statement has become effective or any supplement Payee;
iii. immediately after such transaction, no Note Event of Default exists;
iv. immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period,
1) the Successor Payor would be permitted to incur at least $1.00 of additional indebtedness pursuant to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Initial 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 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 Fixed Charge Coverage Ratio test set forth 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(bSection 1011(a) of the Rules and Regulations to increase Indenture or
2) the size of Fixed Charge Coverage Ratio for the offering registered under the Securities Act Successor Payor and the Rule 462(b) Registration Statement has not yet been filed Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio for the Payor and become effectivethe Restricted Subsidiaries immediately prior to such transaction;
v. the Payor shall have delivered to the Payee an Officers’ Certificate and an Opinion of Counsel, the Company will prepare and file the Rule 462 Registration Statement each stating that such consolidation, merger or transfer comply with the Commission within the time period required bythis Note.
vi. The Successor Payor shall succeed to, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives and counsel substituted 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 filingPayor under this Note.
(b) The Company will advise youNotwithstanding clauses 7(a)(iii) and (iv) above,
i. any Restricted Subsidiary may consolidate with, promptly after it shall receive notice merge into or obtain knowledge thereof, transfer all or part of its properties and assets to the Payor; and
ii. the Payor may merge with an Affiliate of the issuance by Payor solely for the Commission purpose of any stop order suspending reincorporating the effectiveness Payor in another state of the Registration Statement, or any post-effective amendment thereto or preventing or suspending United States so long as the use amount of any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, indebtedness 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; Payor 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 CommissionRestricted Subsidiaries is not increased thereby.
(c) (AUpon any consolidation or merger, or any sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the assets of the Payor in accordance with Sections 7(a) Within the time during which a prospectus (assuming the absence of Rule 172or 7(b) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General Disclosure Package and the Prospectus. If during successor Person formed by such period any event occurs as a result of consolidation or into which the Prospectus (Payor, is merged or the successor Person to which such sale, assignment, conveyance, transfer, lease or disposition is made, shall succeed to, and be substituted for, and may exercise every right and power of the Payor under this Note with the same effect as if such successor Person had been named as the Prospectus is not yet available to prospective purchasersPayor herein. When a successor Person assumes all obligations of its predecessor hereunder this Note, such predecessor shall be released from all obligations; provided that in the event of a transfer or lease, the General Disclosure Packagepredecessor shall not be released from the payment of principal and interest or other obligations on this Note.
(d) would include an untrue statement Sections 1010 through 1015 and Section 1017(a) and (b) of the Indenture are hereby incorporated by reference; provided that Sections 1010, 1011, 1013 through 1015 and 1017(a) and (b) shall not apply upon the occurrence of a material fact Covenant Suspension Event pursuant to and in accordance with Section 1019 of the Indenture; provided, further, that references to “Trustee” shall be to each holder of the Notes.
(e) Sections 1004 through 1007 and Section 1019 of the Indenture are hereby incorporated by reference; provided that references to “Trustee” shall be to each holder of the Notes.
(f) Sections 1008 and 1009 (solely with respect to obligations to deliver reports on Forms 10-K, 10-Q and 8-K) of the Indenture are hereby incorporated by reference; provided that references to “Trustee” shall be to each holder of the Notes.
(g) For the avoidance of doubt, in no event shall the holders of the Notes have any consent rights under the provisions incorporated by reference herein.
(h) The Payor will not enter into any contractual obligations that would restrict or omit to state a material fact necessary prohibit the ability of the Payor to make the statements therein, in Maturity Payment on the light Maturity Date or following the exercise 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceremedies under Section 9 herein.
Appears in 1 contract
Sources: Note (Visant Corp)
Covenants. The Company covenants Tenant shall, and agrees shall cause Guarantor and its respective subsidiaries to, comply (A) with the several Underwriters covenants set forth in Sections 4, 5 and 6 of that certain Business Loan Agreement, dated as follows:
of March 15, 1995 between Tenant and Bank One, Chicago, NA (the "Lender") as amended by Amendment to Business Loan Agreement and Other Loan Documents, dated as of June 7, 1996 (the "Credit Agreement"), in the same manner and to the same effect as if the terms of Sections 4, 5 and 6 of the Credit Agreement were set forth in full herein and (B) upon refinancing of the debt described in the Credit Agreement, with the covenants set forth in the credit agreement that replaces the Credit Agreement (any such replacement credit agreement, the "Senior Credit Agreement") pertaining to the matters addressed in Sections 4, 5 and 6 of the Credit Agreement in the same manner and to the same effect as if the terms of such covenants of the Senior Credit Agreement were set forth herein, and subject to the conditions set forth in the following sentence, after giving effect to any modification, amendment or waiver of the Credit Agreement or Senior Credit Agreement, as the case may be, a copy of which has been delivered to Landlord, and for such purpose such terms of Sections 4, 5 and 6 of the Credit Agreement or Senior Credit Agreement, as the case may be, and such other relevant provisions and definitions of the Credit Agreement or Senior Credit Agreement, as the case may be, as are expressly referenced therein and amendments, modifications, and waivers thereto are incorporated herein by reference. Notwithstanding, and in limitation of, the foregoing, no amendment or modification to, or waiver of, Sections 4, 5 and 6 of the Credit Agreement or Senior Credit Agreement, as the case may be, shall be effective and binding upon Landlord (a) If unless neither Guarantor nor Tenant is required to make any payment or grant any other consideration ("Senior Lender Consideration") to the Initial Registration Statement has not already been declared effective by Lender or lender or lenders that replace the CommissionLender (the Lender or such replacement lender, the Company will use its best efforts "Senior Lender") as a condition to cause the Initial 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 Initial Registration Statement such amendment, modification or any post-effective amendment waiver or, if such consideration is required, unless concurrently with payment to the Initial Registration Statement has become effective or any supplement to the Prospectus has been filed Senior Lender Landlord receives Landlord's Consideration and of any request by the Commission for any amendment or supplement to the Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 unless such amendment or obtain knowledge thereof, modification is executed or waiver granted no later than the earlier to occur of (x) sixty (60) days following the earlier to occur of the issuance by date on which Tenant notified the Commission of any stop order suspending Senior Lender or the effectiveness Senior Lender had actual knowledge of the Registration Statementbreach under the Credit Agreement or Senior Credit Agreement, as the case may be, that gave rise to the need for an amendment, modification or waiver and (y) the date on which the Senior Lender causes the obligations of Tenant and/or Guarantor under the Credit Agreement or the Senior Credit Agreement, as the case may be, to become due prior to their stated maturity. If at any time Tenant shall not be subject to the Credit Agreement or any post-effective amendment thereto or preventing or suspending Senior Credit Agreement that contains covenants pertaining to the use of any Preliminary Prospectusmatters addressed in Sections 4, the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, 5 and 6 of the suspension Credit Agreement, Tenant shall, and shall cause Guarantor and each of its subsidiaries to, comply with the covenants set forth in the most recent Senior Credit Agreement pertaining to the matters addressed in Sections 4, 5 and 6 of the qualification Credit Agreement in the same manner and to the same effect as if the terms of the Securities for offering applicable provisions of such Senior Credit Agreement were set forth in full herein, and giving effect to any modification, amendment 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 waiver thereto that it shall comply complies 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 Commissionforegoing sentence.
(c) (A) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply 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, the General 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 General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Covenants. The Acknowledgements and Agreements of the 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 covenants and agrees shall comply with the several Underwriters as followsfollowing covenants:
(a) If Filings. From the Initial Registration Statement has not already date hereof until the date that is six (6) months after all the Conversion Shares either have been declared effective sold by the CommissionBuyer, or may permanently be sold by the Buyer without any restrictions pursuant to Rule 144 (the "Registration Period"), the Company will use its best efforts shall timely make all filings required to cause be made by it under the Initial Registration Statement 1933 Act, the 1934 Act, Rule 144 or any United States state securities laws and any post-effective amendments thereto regulations thereof applicable to become effective as promptly as possible; the Company will notify you promptly or by the rules and regulations of the time when the Initial Registration Statement or any post-effective amendment Principal Trading Market, and such filings shall conform to the Initial Registration Statement has become effective or any supplement to requirements of applicable laws, regulations and government agencies, and, unless such filings are publicly available on the Prospectus has been filed and of any request by SEC's ▇▇▇▇▇ system (via the Commission for any amendment or supplement to the Initial Registration Statement or Prospectus or SEC's web site at no additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationscharge), the Company will prepare and file shall provide a Prospectus containing copy thereof to the information omitted therefrom pursuant to Rule 430A of Buyer promptly after such filings. Without limiting 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 and the Rule 462(b) Registration Statement has not yet been filed and become effectiveforegoing, the Company will prepare and agrees to file the Rule 462 Registration Statement a Form D with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and respect to the Securities Act; 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 will prepare and shall file with a current report on Form 8-K describing the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution terms of the Securities transactions contemplated by the Underwriters; Transaction Documents in the form required by the 1934 Act and approved by the Company will furnish Buyer and attaching the Representatives and counsel for the Underwriters a copy of any proposed amendment or supplement material Transaction Documents as exhibits 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 such 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 postfurther redact all confidential information from such Form 8-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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. K. Additionally, the Company agrees that it shall comply with furnish to the provisions of Rules 424(bBuyer, so long as the Buyer owns any Securities, promptly upon request, (i) and 430A, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made a written statement by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by that it has complied with the Commission.
(c) (A) Within the time during which a prospectus (assuming the absence reporting requirements of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”)144, the Company will use its best efforts to comply with all requirements imposed upon it by 1933 Act and the Securities 1934 Act, as now and hereafter amended(ii) a copy of the most recent annual or quarterly report of the Company, and by the Rules and Regulations, (iii) such other information as from time to time in force, so far as necessary may be reasonably requested to permit the continuance of sales of or dealings in the Buyer to sell such Securities as contemplated by the provisions hereof, the General 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 pursuant to prospective purchasers, the General 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 investors, the General Disclosure Package) to comply with the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such complianceRule 144 without registration.
Appears in 1 contract
Sources: Securities Purchase Agreement (Novation Holdings Inc)
Covenants. The Company covenants and agrees with the several Underwriters as follows:
(a) If the Initial Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Initial 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 Initial Registration Statement or any post-effective amendment to the Initial 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 Initial 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 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 462(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 Securities 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, may be are necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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 any Preliminary Prospectus, the General Time of Sale Disclosure Package, the 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 promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal 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 430A430B, 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) (Ai) Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer in connection with sales by an Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its reasonable best efforts to comply 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, the General 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 General 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 General Time of Sale Disclosure Package) to comply with the Securities 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 General 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 Underwriters 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 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 Company relating to investor presentations or any “roadshow” undertaken in connection with marketing of the Securities, (viii) all other costs and expenses of the Underwriter incident to the performance of its obligations hereunder not otherwise 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 subsection (viii) (which, for the avoidance of doubt, 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 exceed $80,000, and (ix) all other costs and expenses of the 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 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 or their part to be performed, or because any other condition of the 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 application of the proceeds therefrom as may be required in accordance with Rule 463 of the Rules and Regulations.
(i) 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 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 Common 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) 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 (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in 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 set forth in such registration statement as required by the undertaking set forth in Item 17(a)(1)(ii) of Part II of such registration statement.
(j) The Company has caused to be delivered to you prior to the 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 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 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 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.
(m) During the Prospectus Delivery Period, the Company 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, the Company and its Subsidiary will comply with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 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 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 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 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 avoid a requirement to file with the Commission any electronic roadshow.
(p) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of
Appears in 1 contract
Covenants. (a) The Company covenants and agrees with the several Underwriters as follows:
(ai) If During the Initial 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 has (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 already been declared effective by file any such proposed amendment or supplement to which the CommissionRepresentative or counsel to the Underwriters reasonably object. Subject to this Section 4(a)(i), immediately following execution of this Agreement, the Company will use its best efforts prepare the Prospectus containing the information omitted pursuant to cause Rule 430A and other selling terms of the Initial Registration Statement Securities, the plan of distribution thereof and any post-effective amendments thereto to become effective such other information as promptly may be required by the Securities Act or the Rules and Regulations or as possible; 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 notify you 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.
(ii) After the date of this Agreement, the Company shall promptly advise the Representative in writing (A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (B) of the time when the Initial Registration Statement or and date of any filing of any post-effective amendment to the Initial 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 Initial Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulationsany Preliminary Prospectus, the Company will prepare and file a Prospectus containing Time of Sale Disclosure Package or the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required byProspectus, 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(C) of the Rules time and Regulations to increase the size of the offering registered under the Securities 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 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, date that any amendments or supplements post-effective amendment to the Registration Statement or Prospectus thatbecomes effective, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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.
(bD) 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, Statement or any post-effective amendment thereto or of any order preventing or suspending its use or the use of any Preliminary Prospectus, the General 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 suspension of the qualification of the Securities Common Stock from any securities exchange upon which it is listed for offering trading or sale in any jurisdictionincluded or designated for quotation, or of the threatening or initiation or threatening of any proceeding proceedings for any of such purpose; and purposes. If the Commission shall enter any such stop order at any time, the Company will promptly use its best efforts to prevent obtain the issuance lifting of any stop such order or to obtain its withdrawal if such a stop order should be issuedat the earliest possible moment. 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 CommissionCommission (without reliance on Rule 424(b)(8) or Rule 164(b)).
(ciii) (A) Within During the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to 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 General 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 General 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 Representative or counsel to the Underwriters to amend the Registration Statement or supplement the Prospectus (or or, if the Prospectus is not yet available to prospective investorspurchasers, the General Time of Sale Disclosure Package) to comply with the Securities 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 General Time of Sale Disclosure Package) (at the expense of the Company) Company so as to correct such statement or omission or effect such compliance.
Appears in 1 contract
Covenants. (a) The Company Issuer covenants and agrees with the several Underwriters as follows: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 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 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.
(ab) If the Initial Registration Statement The Issuer has not already 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 Offered Securities that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been declared effective consented to by the CommissionIssuer 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 Company 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 use its best efforts 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 Initial Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly stabilization or manipulation of the time price of any securities of the Issuer.
(d) The Issuer will advise the Representatives promptly (i) when the Initial Registration Statement or any post-effective amendment to thereto shall have become effective; (ii) of receipt of any comments from the Initial Commission; (iii) of any request of the Commission for amendment of the Registration Statement has become effective or any for supplement to the Prospectus has been filed and of any request by the Commission or for any amendment or supplement to the Initial 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 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(iv) 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 and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act; the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus that, based on the advice of counsel, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representatives 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, Statement or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the General 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 institution of any proceeding proceedings for any such that purpose; and the Company . The Issuer will promptly use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain its withdrawal as soon as possible the lifting thereof, 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.
(ce) The Issuer will cooperate with the Representatives in endeavoring to qualify the Shares for sale under (Aor obtain exemptions from the application of) Within 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 (i) qualify 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) file any general consent to service of process in any such jurisdiction or (iii) 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 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 Prospectuses as the Representatives may reasonably request. The Issuer will deliver to, or upon the order of, the Representatives during which the period when delivery of a prospectus (assuming the absence of Rule 172) relating to the Securities Prospectus is required to be delivered under the Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act, as now 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 Representatives, the Issuer will deliver to the Representatives at or before the Closing Date, four copies of the signed Registration Statement and hereafter amendedall amendments thereto including all exhibits filed therewith, and by 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, as from time to time in forceand the Exchange Act, and the rules and regulations of the Commission thereunder, so far as necessary to permit the continuance completion of sales the distribution of or dealings in the Securities Shares as contemplated by the provisions hereof, the General Disclosure Package in this Agreement and the Prospectus. If during such period any event occurs as the Pricing Prospectus is being used to solicit offers to buy Shares at a result of which the Prospectus (or if time when the Prospectus is not yet available to prospective purchaserspurchasers 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 becomes 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 General Disclosure Packageinformation in the Pricing Prospectus (taken together with the Issuer Free Writing Prospectuses and other documents listed in Schedule II(a) would include 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 untrue statement 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 material fact prospectus is required by law to be delivered by an Underwriter or omit dealer (or in lieu thereof the notice referred to state in Rule 173 under the Securities Act), any event shall occur as a material fact 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 then existingexisting 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 or, if during such period 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 (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 if 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 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, (ii) file or 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 offered under any of the 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 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 is not yet available and the Disclosure Package and shall report with the Commission with respect to prospective investors, the General Disclosure Package) to comply sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities 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 General Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
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