Agreements of the Company. The Company agrees with you: (a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request. (c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective. (d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request. (e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing. (f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject. (g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available. (h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request. (i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement. (j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares. (k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 3 contracts
Sources: Underwriting Agreement (Echostar Communications Corp), Underwriting Agreement (Mci Worldcom Inc), Underwriting Agreement (News America Inc)
Agreements of the Company. The Company covenants and agrees with youthe Placement Agents as follows:
(ai) To advise you The Registration Statement has become effective, and if Rule 430A under the Act is used or the filing of the Final Prospectus is otherwise required under Rule 424(b) under the Act, the Company will file the Final Prospectus (properly completed if Rule 430A under the Act has been used), subject to the prior approval of the Placement Agents, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly andfollowing such filing.
(ii) The Company will not, during such period as the Final Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rule 172 under the Act or any similar rule), file any amendment or supplement to the Registration Statement or the Final Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(iii) The Company will notify the Placement Agents promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective; (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Final Prospectus or any Issuer Free Writing Prospectus or for additional information, ; (ii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement Statement, the Final Prospectus or of the suspension of qualification of the Shares for offering or sale in any jurisdictionIssuer Free Writing Prospectus, or the initiation of any proceeding proceedings for such purposes, that purpose or the threat thereof; (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during that in the period referred to in Section 5(d) below which judgment of the Company makes any statement of a material fact made in the Registration Statement or the Final Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Final Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby or in connection with sales of Common Stock pursuant to market making activities by The Representative, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible timemoment. If the Company has omitted any information from the Registration Statement, pursuant to Rule 430A under the Act, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Placement Agents promptly of all such filings.
(biv) To furnish to you five photocopies of signed copies of If, at any time when the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Final Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment relating to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection under the Act (whether physically or through compliance with sales by an Underwriter Rule 172 under the Act or a dealerany similar rule), to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Final Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Placement Agents, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Final Prospectus or the Registration Statement to comply with applicable lawthe Act or the Rules and Regulations, forthwith to the Company will promptly notify the Placement Agents and will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or omission or effects such compliance and will deliver to the Placement Agents, without charge, such number of copies thereof as the Placement Agents may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto.
(v) The Company will furnish to the Placement Agents and their counsel, without charge (a) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (b) so that long as a prospectus relating to the statements in Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule), as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Final Prospectus or any amendment or supplement thereto 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 Placement Agents may reasonably request.
(vi) The Company will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request all the undertakings contained in writingthe Registration Statement.
(fvii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents.
(viii) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed, and timely file and include the appropriate legends as required by the Rules and Regulations. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show.
(ix) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the Final Prospectus under the caption “Use of Proceeds.”
(x) Prior to any public offering the sale of the SharesShares to the Investors, to the Company will cooperate with you the Placement Agents and their counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agents may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gxi) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the The Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To will use its best efforts to list for quotation cause the Shares to be listed for trading on The Nasdaq Capital Market at the Nasdaq National Market and time of the Closing.
(xii) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to maintain cause or result in, or which will constitute, stabilization of the listing price of the Shares on to facilitate the Nasdaq National Market for a period sale or resale of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kxiii) The Company will notify promptly the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of the Lock-Up Period.
(xiv) If at any time following the Registration Statement at distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary to make the time statements therein in the light of the effectiveness of this Agreement does circumstances under which they were made at such time not cover all misleading, the Company will (i) notify promptly the Representative so that use of the SharesWritten Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as may be reasonably requested.
(xv) The Company will not, directly or indirectly, without the prior written consent of the Placement Agents, offer to file sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, or otherwise dispose of (or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company, (the “Lock-Up Securities”) for a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on period of 180 days after the date of this AgreementAgreement (the “Lock-Up Period”), except with respect to (i) the issuance of shares of Common Stock upon the exercise of stock options outstanding as of the date hereof, and (ii) the issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in the Final Prospectus.
(xvi) The Company agrees that if the Representative agrees to waive or release any officer or director of the Company from the lock-up restrictions in the letter agreements delivered pursuant to Section 7(xiii), the Company will announce the impending release or waiver by press release through a major news services at least two business days before the effective date of such release or waiver.
Appears in 3 contracts
Sources: Placement Agency Agreement (Truett-Hurst, Inc.), Placement Agency Agreement (Truett-Hurst, Inc.), Placement Agency Agreement (Truett-Hurst, Inc.)
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To The Company will advise you promptly and, if requested by you, to will confirm such advice in writingwriting (i) when the Registration Statement has become effective (if not effective as of the time and date of this Agreement) and when any post-effective amendment to the Registration Statement or any registration statement filed pursuant to Rule 462(b) under the Act is filed or becomes effective, (iii) if Rule 430A under the Act is employed, when the Prospectus or term sheet (as described in Rule 434(b) under the Act) has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation (or threatened initiation) of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during within the period of time referred to in Section 5(d5(e) below which below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company, that makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or which that requires the making of any additions to thereto or changes in the Registration Statement or the Prospectus therein in order to make the statements therein not misleadingmisleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act of any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To The Company will furnish to you five photocopies of you, without charge, two signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits thereto, and to will also furnish to you and each Underwriter designated by you you, without charge, such number of conformed copies of the Registration Statement as so originally filed and of each amendment to it, without exhibits, thereto as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not Statement, file any registration statement pursuant to Rule 462(b) under the Act or make any amendment or supplement to the Prospectus of which you shall not previously have been advised (with a reasonable opportunity to review such amendment, registration statement or supplement) or to which you shall have reasonably object objected after being so advised; provided, that or which is not in compliance with the Act. The Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to will prepare and file with the Commission, promptly upon your reasonable request, Commission any amendment amendments or supplements to the Registration Statement or amendment or supplement to Prospectus which, in the Prospectus which may be opinion of counsel of the several Underwriters, are reasonably necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectiveUnderwriters.
(d) Prior The Company has delivered or will deliver to 10:00 A.M.you, New York City timewithout charge, on in such quantities as you have requested or may hereafter reasonably request, copies of each form of the first business day after Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time thereafter for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a dealer, to furnish in New York City the Company will deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer they may reasonably request.
. The Company consents to the use of the Prospectus (eand of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during at any time prior to the period specified in later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 5(d)4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable the Act or any other law, forthwith to the Company will promptly prepare and file with the Commission an appropriate supplement or amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable lawthereto, and to will furnish to each Underwriter and to any each dealer as many who has previously requested Prospectuses, without charge, a reasonable number of copies thereof as such Underwriter or dealer may reasonably request in writingthereof.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be reasonably necessary in order to effect such registration or qualification; providedqualification for so long as required to complete the distribution of the Shares, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Sharesin suits, in any jurisdiction in which where it is not now so subject.
(g) To mail and make generally available to its stockholders . In each jurisdiction in which the Shares shall have been qualified as soon as practicable an earnings statement covering the twelve-month period ending December 31above provided, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed will make and file such other publicly available information concerning the Company statements and its subsidiaries reports in each year as you are or may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things be required or necessary to be done and performed under this Agreement by the Company prior to laws of such jurisdiction. In the Closing Date or any Option Closing Date, as event that the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.qualification of
Appears in 3 contracts
Sources: Underwriting Agreement (Insurance Management Solutions Group Inc), Underwriting Agreement (Insurance Management Solutions Group Inc), Underwriting Agreement (Insurance Management Solutions Group Inc)
Agreements of the Company. The Company hereby agrees with youthe Underwriter as follows:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares Bonds for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the such Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of the Underwriter two (2) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each the Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you the Underwriter may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to youthe Underwriter, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you the Underwriter shall not previously have been advised or to which you the Underwriter shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares Securities by youthe Underwriter, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters Underwriter a prospectus is required by law to be delivered in connection with sales by an the Underwriter or a dealer, to furnish in New York City to each the Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated by reference, as such the Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the UnderwritersUnderwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the UnderwritersUnderwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each the Underwriter and to any dealer as many copies thereof as such the Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the SharesBonds, to cooperate with you the Underwriter and its counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Bonds for offer and sale by the several Underwriters Underwriter and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriter may request, to continue such registration or qualification in effect so long as required for distribution of the Shares Bonds and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the SharesBonds, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders security holders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 1999 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you the Underwriter in writing when such statement has been so made available.
(h) During So long as the Bonds are outstanding, (i) to mail and make generally available as soon as practicable, but not later than 120 days, after the end of each fiscal year to the record holders of the Bonds a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent public accountants and (ii) to mail and make generally available as soon as practicable, but not later than 45 days, after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of three years after such year to the date close of this Agreementsuch quarterly period, together with comparable information for the corresponding periods of the preceding year.
(i) So long as the Bonds are outstanding, to furnish to you upon your written request the Underwriter as soon as available copies of all reports or other communications furnished to the record its security holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you the Underwriter may reasonably request.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Bonds under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriter and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Bonds to the Underwriter, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Bonds, (iv) all expenses in connection with the registration or qualification of the Bonds for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriter in connection with the review and clearance of the offering of the Bonds by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Bonds and all costs and expenses incident to the listing of the Bonds on any national securities exchanges and/or foreign securities exchanges, (vii) the cost of printing the Bonds, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (ix) any fees charged by rating agencies for the rating of the Bonds, (x) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Bonds and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(k) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Bonds, other than (i) the Bonds, (ii) securities issued under the Existing Mortgage (as defined in the Indenture), (iii) commercial paper issued in the ordinary course of business and (iv) promissory notes issued for working capital purposes under the Company's existing bank credit facilities, without the prior written consent of the Underwriter.
(l) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Bonds.
(m) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesBonds.
(kn) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the SharesBonds, to file a Rule 462(b) Registration Statement with the Commission registering the Shares Bonds not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Midland Enterprises Inc /De/), Underwriting Agreement (Eastern Enterprises)
Agreements of the Company. The Company agrees with youthe several Underwriters that:
(a) To During the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless, in each case, the Company has furnished the Representatives a copy for their review prior to such time, and the Company will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings.
(b) During the Prospectus Delivery Period, the Company will promptly advise you promptly andthe Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, if requested by youand any supplements or amendments thereto, have been filed with the Commission pursuant to confirm such advice in writingRules 424(b) and 433, respectively, (iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement has been filed or becomes effective, (iii) of any request by the Commission for amendments to any amendment of the Registration Statement or amendments or supplements supplement to the Final Prospectus or for any additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering institution or sale in any jurisdiction, or the initiation threatening of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective that purpose and (v) of the happening receipt by the Company of any event during notification with respect to the period referred to suspension of the qualification of the Securities for sale in Section 5(d) below which makes any statement of a material fact made in the Registration Statement jurisdiction or the Prospectus untrue initiation or which requires threatening of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleadingproceeding for such purpose. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will use its reasonable best efforts to obtain prevent the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you issuance of any such amendment; stop order and, during such periodif issued, to prepare obtain as soon as possible the withdrawal thereof, including, if necessary, and file with subject to the Commissionfirst sentence of paragraph (a) of this Section 4, promptly upon your reasonable request, any by filing an amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, a new registration statement and to use using its reasonable best efforts to cause any have such amendment or new registration statement declared effective as soon as practicable.
(c) The Company will prepare a final term sheet, containing solely a description of the Securities, as set forth in Schedule IV hereto, and will file such term sheet pursuant to Rule 433(d) within the Registration Statement to become promptly effectivetime required by such Rule.
(d) Prior to 10:00 A.M.If, New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of during the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)Delivery Period, any event shall occur or condition shall exist occurs as a result of which, in the opinion of counsel for the UnderwritersUnderwriters or counsel for the Company, it becomes the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Prospectus in order to make the statements therein, therein in the light of the circumstances when the Prospectus is delivered to a purchaser, under which they were made not misleading, or ifif it shall be necessary to amend the Registration Statement or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or the Exchange Act or the respective rules and regulations thereunder, the Company promptly will (i) notify the Representatives of such event or, in circumstances where the Company’s obligations under this paragraph (d) arise from an opinion of counsel for the Underwriters, it is necessary to amend or supplement notify the Prospectus to comply with applicable lawRepresentatives of such event after the Company receives such opinion, forthwith to (ii) prepare and file with the Commission Commission, subject to the first sentence of paragraph (a) of this Section 4, an appropriate amendment to the Registration Statement, a new registration statement or an amendment or supplement to the Disclosure Package or the Final Prospectus so that will correct such statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any amendment to the statements Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in the Prospectus, such quantities as so amended or supplemented, will not in the light of the circumstances when it is so delivered, may be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequested.
(fe) Prior to any public offering of the SharesAs soon as practicable, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and will make generally available to its stockholders as soon as practicable security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited) covering a period of at least 12 months beginning after the twelve-month period ending December 31, 2000 that shall satisfy date hereof and otherwise satisfying the provisions of Section 11(a) of the ActAct (including, and to advise you in writing when such statement has been so made availableat the option of the Company, Rule 158).
(hf) During the period of three years after the date of this Agreement, to The Company will furnish to you upon your written request the Representatives and counsel for the Underwriters, without charge, copies of all reports or other communications furnished to the record holders Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of Common Stock or furnished to or filed with any Preliminary Final Prospectus, the Commission or any national securities exchange on which any class of securities of Final Prospectus and each Issuer Free Writing Prospectus and supplement thereto as the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you Representatives may reasonably request.
(g) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities (provided that the Company will not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject), will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay the fee of the Financial Industry Regulatory Authority in connection with its review of the offering.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for printing and engraving fees, for fees charged by the Trustee, for the expenses, if any, incurred by the Underwriters in road shows, for any filing fee of the Financial Industry Regulatory Authority relating to the Securities and for expenses incurred in printing and distributing the Final Prospectus, any Preliminary Final Prospectuses and any supplements thereto to the Underwriters. The Company will pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(i) To use its best efforts to list for quotation During the Shares on Prospectus Delivery Period, the Nasdaq National Market and to maintain Company will not, without the listing prior written consent of the Shares on Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Nasdaq National Market for Company would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Company will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, any electronic road show and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a period “Permitted Free Writing Prospectus.” The Company agrees that (i) it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it will comply with the requirements of three years after Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the date of this AgreementCommission, legending and record keeping.
(j) To use its reasonable best efforts The Company will not, without the prior written consent of the Representatives, offer, sell, contract to do and perform all things required sell, pledge, or necessary to be done and performed under this Agreement otherwise dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company prior (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Registration Statement at the time Exchange Act or otherwise, stabilization or manipulation of the effectiveness price of this Agreement does not cover all any security of the Shares, Company to file a Rule 462(bfacilitate the sale or resale of the Securities.
(l) Registration Statement The Company will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission registering the Shares not so covered in compliance accordance with Rule 462(b433.
(m) by 10:00 P.M., New York City time, on The Company will use the date of this Agreementnet proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Johnson Controls Inc), Underwriting Agreement (Johnson Controls Inc)
Agreements of the Company. The Company agrees with youthe several Underwriters that:
(a) To During the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless, in each case, the Company has furnished the Representatives a copy for their review prior to such time, and the Company will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings.
(b) During the Prospectus Delivery Period, the Company will promptly advise you promptly andthe Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, if requested by youand any supplements or amendments thereto, have been filed with the Commission pursuant to confirm such advice in writingRules 424(b) and 433, respectively, (iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement has been filed or becomes effective, (iii) of any request by the Commission for amendments to any amendment of the Registration Statement or amendments or supplements supplement to the Final Prospectus or for any additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering institution or sale in any jurisdiction, or the initiation threatening of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective that purpose and (v) of the happening receipt by the Company of any event during notification with respect to the period referred to suspension of the qualification of the Securities for sale in Section 5(d) below which makes any statement of a material fact made in the Registration Statement jurisdiction or the Prospectus untrue initiation or which requires threatening of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleadingproceeding for such purpose. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will use its reasonable best efforts to obtain prevent the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you issuance of any such amendment; stop order and, during such periodif issued, to prepare obtain as soon as possible the withdrawal thereof, including, if necessary, and file with subject to the Commissionfirst sentence of paragraph (a) of this Section 4, promptly upon your reasonable request, any by filing an amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, a new registration statement and to use using its reasonable best efforts to cause any have such amendment or new registration statement declared effective as soon as practicable.
(c) The Company will prepare a final term sheet, containing solely a description of the Securities, as set forth in Schedule IV hereto, and will file such term sheet pursuant to Rule 433(d) within the Registration Statement to become promptly effectivetime required by such Rule.
(d) Prior to 10:00 A.M.If, New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of during the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)Delivery Period, any event shall occur or condition shall exist occurs as a result of which, in the opinion of counsel for the UnderwritersUnderwriters or counsel for the Company, it becomes the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Prospectus in order to make the statements therein, therein in the light of the circumstances when the Prospectus is delivered to a purchaser, under which they were made not misleading, or ifif it shall be necessary to amend the Registration Statement or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or the Exchange Act or the respective rules and regulations thereunder, the Company promptly will (i) notify the Representatives of such event or, in circumstances where the Company’s obligations under this paragraph (d) arise from an opinion of counsel for the Underwriters, it is necessary to amend or supplement notify the Prospectus to comply with applicable lawRepresentatives of such event after the Company receives such opinion, forthwith to (ii) prepare and file with the Commission Commission, subject to the first sentence of paragraph (a) of this Section 4, an appropriate amendment to the Registration Statement, a new registration statement or an amendment or supplement to the Disclosure Package or the Final Prospectus so that will correct such statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any amendment to the statements Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in the Prospectus, such quantities as so amended or supplemented, will not in the light of the circumstances when it is so delivered, may be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequested.
(fe) Prior to any public offering of the SharesAs soon as practicable, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and will make generally available to its stockholders as soon as practicable security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited) covering a period of at least 12 months beginning after the twelve-month period ending December 31, 2000 that shall satisfy date hereof and otherwise satisfying the provisions of Section 11(a) of the ActAct (including, and to advise you in writing when such statement has been so made availableat the option of the Company, Rule 158).
(hf) During the period of three years after the date of this Agreement, to The Company will furnish to you upon your written request the Representatives and counsel for the Underwriters, without charge, copies of all reports or other communications furnished to the record holders Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of Common Stock or furnished to or filed with any Preliminary Final Prospectus, the Commission or any national securities exchange on which any class of securities of Final Prospectus and each Issuer Free Writing Prospectus and supplement thereto as the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you Representatives may reasonably request.
(g) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities (provided that the Company will not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject), will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay any fee of the Financial Industry Regulatory Authority in connection with its review of the offering.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for printing and engraving fees, for fees charged by the Trustee, for the expenses, if any, incurred by the Underwriters in road shows, for any filing fee of the Financial Industry Regulatory Authority relating to the Securities and for expenses incurred in printing and distributing the Final Prospectus, any Preliminary Final Prospectuses and any supplements thereto to the Underwriters. The Company will pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(i) To use its best efforts to list for quotation During the Shares on Prospectus Delivery Period, the Nasdaq National Market and to maintain Company will not, without the listing prior written consent of the Shares on Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Nasdaq National Market for Company would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Company will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, any electronic road show and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a period “Permitted Free Writing Prospectus.” The Company agrees that (i) it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it will comply with the requirements of three years after Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the date of this AgreementCommission, legending and record keeping.
(j) To use its reasonable best efforts The Company will not, without the prior written consent of the Representatives, offer, sell, contract to do and perform all things required sell, pledge, or necessary to be done and performed under this Agreement otherwise dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company prior (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Registration Statement at the time Exchange Act or otherwise, stabilization or manipulation of the effectiveness price of this Agreement does not cover all any security of the Shares, Company to file a Rule 462(bfacilitate the sale or resale of the Securities.
(l) Registration Statement The Company will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission registering the Shares not so covered in compliance accordance with Rule 462(b433.
(m) by 10:00 P.M., New York City time, on The Company will use the date of this Agreementnet proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Johnson Controls Inc), Underwriting Agreement (Johnson Controls Inc)
Agreements of the Company. The Company agrees with youthat, so long as this Agreement has not been terminated as provided herein, unless otherwise permitted or required by this Agreement or consented to in writing by the Requisite Consenting 10% Noteholders and Requisite Consenting Cross Holders, it shall:
(a) To advise you promptly and, if requested by you, use commercially reasonable efforts to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to meet all deadlines set forth in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time5 hereof.
(b) To furnish to you five photocopies not directly or indirectly seek, solicit, or support any other plan, sale, proposal, or offer of signed copies dissolution, winding up, liquidation, reorganization, merger, or restructuring of the Registration Statement as first filed with Company that could reasonably be expected to prevent, delay or impede the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies restructuring of the Registration Statement Company as so filed and of each amendment to itcontemplated by the Amended Plan or that is inconsistent with this Agreement (collectively, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advisedan “Alternative Plan”); provided, that the Company shall have may subsequently solicit and negotiate a proposal for an Alternative Plan, but only if such Alternative Plan expressly provides for payment of 10% Notes Claims in full in cash on the right effective date of such Alternative Plan;
(c) not amend the Amended Plan in a manner adverse to make such further amendments as are required by law the Consenting 10% Noteholders, provided, that changes adverse to the Consenting Cross Holders may not be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with without the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution consent of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.Requisite Consenting Cross Holders (as defined herein);
(d) Prior unless provided under Section 4(b), not take any action that is intended or is reasonably likely to 10:00 A.M.interfere with consummation of, New York City time, on the first business day after Amended Plan and the date of this Agreement and from time to time thereafter for such period as Restructuring Transactions embodied in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter Amended Plan and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.Term Sheet;
(e) If during the period specified in unless provided under Section 5(d4(b), any event shall occur or condition shall exist as a result of which, support and complete the Restructuring Transactions substantially on the terms set forth in the opinion of counsel for the UnderwritersAmended Plan, it becomes necessary with such terms subject to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement changes reasonably acceptable to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.Requisite Consenting 10% Noteholders;
(f) Prior provide the Consenting 10% Noteholders with copies of all material executory contracts, unexpired leases, employment agreements and new employment agreements, incentive plans, employee benefits plans, performance plans and retention programs to any public offering be assumed by the Amended Plan (collectively, the “Material Assumed Contracts”), with assumption of Material Assumed Contracts subject to the reasonable consent of the Shares, Requisite Consenting 10% Noteholders (as defined herein);
(g) provide the Consenting Noteholders with ongoing consultation rights and the right to cooperate with you and counsel for propose modifications to the Underwriters at the expense terms of the Sellers Amended Plan and Disclosure Statement, with any such modifications: (i) being reasonably satisfactory in connection with form and substance to the registration or qualification Company, the Requisite Consenting 10% Noteholders, and (ii) to the extent adverse to the Consenting Cross Holders, subject to the reasonable consent of the Shares Requisite Consenting Cross Holders;
(h) pay all reasonable and documented fees and expenses incurred by:
(i) the Consenting 10% Noteholders for offer their employment of: (A) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇ ▇▇▇▇▇▇▇”), as legal counsel; (B) Young ▇▇▇▇▇▇▇ Stargatt & ▇▇▇▇▇▇, LLP (“YCST”), as Delaware counsel; and sale by (C) Duff & ▇▇▇▇▇▇ Securities, LLC, as financial advisor (“D&P”) pursuant to the several Underwriters and by dealers under terms of D&P’s engagement letter dated June 30, 2011 (the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification“D&P Fee Letter”); provided, howeverthat as of January 1, 2012, and going forward all reasonable and document D&P monthly fees and expenses are to be paid pursuant to the Alternative Plan Trigger terms of the D&P Fee Letter; provided further, that the Company shall not be required in connection therewith will use commercially reasonable efforts to register or qualify pay all outstanding reasonable and documented fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇▇▇, YCST, and D&P as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the SharesApproval Order and shall continue to pay such fees in full monthly thereafter in accordance with existing practice and the Stipulation, in any jurisdiction in Agreement, and Final Order Granting Adequate Protection under Sections 361, 362, 363 and 507 of the Bankruptcy Code, dated June 30, 2011 [Docket No. 78] (the “Stipulation”), except D&P’s Deferred Restructuring Fee, which it is not now so subject.shall be payable upon the Effective Date of the Amended Plan; and
(gii) To mail the Consenting Cross Holders, up to $1.75 million, for their employment of counsel and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31financial advisors, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class allocation of securities of such amount to be agreed upon amongst the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestConsenting Cross Holders.
(i) To use its best efforts subject to list for quotation the Shares on the Nasdaq National Market and to maintain the listing requirements of the Shares on Bankruptcy Code for notice, hearing and Court approval, among other things, operate its business in the Nasdaq National Market for a period ordinary course taking into account the terms of three years after the date of this Agreement.Amended Plan, Term Sheet and the Chapter 11 Cases;
(j) To use its reasonable best efforts to do unless otherwise required by the Bankruptcy Court, keep confidential and perform all things required or necessary cause the amount of 10% Notes Claims and/or 8.625% Notes Claims, as applicable, held by any Consenting Noteholder identified on the signature pages attached hereto to be done and performed under redacted to the extent this Agreement by is filed on the Company prior docket maintained in the Chapter 11 Cases, and not disclose to any third party the Closing Date or any Option Closing Dateprincipal amount of 10% Notes Claims and/or 8.625% Notes Claims, as applicable, set forth below each Consenting Noteholder’s name on the case may be, and signature pages hereof (or below its name on the signature page of a Joinder Agreement executed by a Consenting Noteholder that becomes a Party to satisfy all conditions precedent to this Agreement after the delivery of the Shares.Execution Date);
(k) If the Registration Statement at the time if a member of the effectiveness Company’s management knows of this Agreement does not cover all a breach by the Company in any material respect of any of the Sharesobligations, to file a Rule 462(b) Registration Statement with representations, warranties, or covenants of the Commission registering the Shares not so covered Company set forth in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement, furnish prompt written notice (and in any event within five (5) business days of such actual knowledge) to counsel to the Consenting Noteholders; and
(l) in the event there is a dispute regarding whether any Consenting Noteholder is unreasonably withholding its consent, the Company shall seek prompt resolution of said dispute in the Bankruptcy Court.
Appears in 2 contracts
Sources: Plan Support Agreement, Plan Support Agreement (NBC Acquisition Corp)
Agreements of the Company. (a) The Company agrees to allocate and remit funds received from customers for the benefit of the each of the Receivables Facility SPV, each Administrative Agent and each Securitization SPV, respectively, and shall control the movement of such funds out of the Collection Accounts (such allocation, remittance and deposits hereafter called the “Allocation Services”) in accordance with you:
(a) To advise you promptly and, if requested by you, to confirm such advice the terms of this Agreement and the Credit and Collection Policy. The same entity must always act as servicer in writing, (i) the performance of any request by the Commission for amendments Allocation Services with respect to the Registration Statement or amendments or supplements to Joined Party Transaction Documents and the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timeReceivables Documents.
(b) To furnish In the event that any Joined Party is entitled to, and desires to, exercise its right, pursuant to you five photocopies of signed copies its Joined Party Transaction Documents, to replace the Company as servicer, collection agent or similar role thereunder, or in the event that the RFA Administrative Agent is entitled to, and desires to, exercise its right to replace the Company as Servicer, and therefore to terminate the role of the Registration Statement Company as first filed the provider of the Allocation Services hereunder, the party desiring to exercise such right shall promptly give written notice to the other Administrative Agents (the “Servicer Notice”) in accordance with the Commission notice provisions of this Agreement and consult with the other Administrative Agents with respect to the Person who would replace the Company as the provider of each amendment the Allocation Services hereunder. Any successor to it, including all exhibitsthe Company as the provider of the Allocation Services hereunder shall be agreed to by the Administrative Agents within ten (10) Business Days of the date of the Servicer Notice, and such successor shall be subject to furnish to you and each Underwriter designated by you such number of conformed copies satisfaction of the Registration Statement Rating Agency Condition and otherwise satisfy the provisions of the respective Joined Party Transaction Documents and the Receivables Documents. The Person named as so filed and of each amendment replacement collection agent in accordance with this Section 6 is referred to it, without exhibits, herein as you may reasonably requestthe “Replacement Collection Agent.”
(c) To prepare Anything in this Agreement to the Prospectuscontrary notwithstanding, the form and substance of which any action taken by any Administrative Agent to appoint a Replacement Collection Agent pursuant to this Section 6 shall be satisfactory subject to youthe Rating Agency Condition and the consents, if required by law, regulation, regulatory order or of the California Public Utility Commission and as may be required by the Receivables Documents or any Joined Party Transaction Document. The parties hereto acknowledge and agree that any approval or consent of any rating agency that is required in order to satisfy the Rating Agency Condition is not subject to any standard of commercial reasonableness, and the parties are bound to file satisfy this condition whether or not the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment rating agencies are unreasonable or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivearbitrary.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of Anything in this Agreement and from time to time thereafter for such period the contrary notwithstanding, the Company’s obligations to the Collection Account Agent hereunder shall survive notwithstanding that a Replacement Collection Agent has replaced the Company as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies provider of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably requestAllocation Services hereunder.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 2 contracts
Sources: Collection Account Intercreditor Agreement (PG&E Recovery Funding LLC), Collection Account Intercreditor Agreement (PG&E Corp)
Agreements of the Company. The Company covenants and agrees with youthe Placement Agent as follows:
(a) To advise you When the Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Placement Agent promptly andfollowing such filing.
(b) The Company will use commercially reasonable efforts to keep the Registration Statement effective at all times during the period commencing on the effective date of the Registration Statement and continuing thereafter until the closing of the sale of the Units and for at least six months thereafter, and until such later date that either (i) all Warrants shall have either been exercised in full or terminated or (ii) in the opinion of counsel, an exemption from the registration requirements of applicable federal and state securities laws is available for the issuance of all Securities and the resale thereof (the “Registration Period”).
(c) The Company will not, during the Registration Period, file any amendment or supplement to the Registration Statement or the Prospectus, except as required by law, unless a copy thereof shall first have been submitted to the Placement Agent within a reasonable period of time prior to the filing thereof and the Placement Agent shall not have reasonably and timely objected thereto in good faith.
(d) The Company will notify the Placement Agent promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective at any time during the Registration Period; (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectuses or for additional information, information at any time during the Registration Period; (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, the Prospectus or of the suspension of qualification of the Shares for offering or sale in any jurisdictionIssuer Free Writing Prospectus, or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, (iii) when at any amendment to time during the Registration Statement becomes effective, Period; (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during the period referred to Registration Period that in Section 5(d) below which the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Placement Agent promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably requestfilings.
(e) If during If, at any time when a Prospectus relating to the period specified in Section 5(d)Securities is required to be delivered under the Act, the Company becomes aware of the occurrence of any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Placement Agent, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agent, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Act or the Rules and Regulations, forthwith the Company will promptly notify the Placement Agent and, subject to Section 5(b) hereof, will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in the ProspectusPlacement Agent, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer the Placement Agent may reasonably request in writingrequest. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Placement Agent, and the Placement Agent agrees to provide to each Investor, prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto.
(f) The Company will furnish to the Placement Agent and its counsel, without charge (i) one copy of the Registration Statement, including financial statements and schedules, and all exhibits thereto and (ii) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Placement Agent may reasonably request.
(g) The Company will comply with all the undertakings contained in the Registration Statement.
(h) The Company will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agent, and unless counsel to the Company and the Placement Agent agree that the Company is not an “ineligible issuer” and is otherwise eligible to use a free writing prospectus pursuant to Rule 405;
(i) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations.
(j) Prior to any public offering the sale of the SharesUnits to the Investors, to the Company will cooperate with you the Placement Agent and its counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agent may reasonably and timely request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gk) To mail The Company will apply the net proceeds from the offering and make generally available sale of the Units in substantially the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(l) The Company will take all actions necessary to its stockholders ensure that the Shares and the Warrant Shares are listed or approved for listing on NYSE Amex Equities at the time of Closing, with such listing to occur at the Closing or as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made availablethereafter.
(hm) During the period of three years after the date of this AgreementThe Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to furnish to you upon your written request copies cause or result in, or which will constitute, stabilization of all reports or other communications furnished to the record holders price of its Common Stock to facilitate the sale or furnished to or filed with the Commission or resale of any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestSecurities.
(in) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the The Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover shall comply with all of the Sharesterms and conditions set forth in the Company Lock-Up Agreement, including without limitation, the covenant that it shall not consent to file any request by any other party subject to a Rule 462(b) Registration Statement with lock-up agreement to permit the Commission registering the Shares not so covered in compliance with Rule 462(b) sale by 10:00 P.M., New York City time, on the date such party of this Agreementany shares of Common Stock.
Appears in 2 contracts
Sources: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)
Agreements of the Company. (a) The Company agrees with you:
(a) To advise you to use its commercially reasonable efforts to commence the Exchange Offer and the Consent Solicitation as promptly and, if requested by youas practicable, to confirm such advice do all things reasonably necessary and appropriate in writingfurtherance thereof, including filing any related documents with the Securities and Exchange Commission (i) of any request by the Commission for amendments “Commission”), and to cause the Registration Statement or amendments or supplements (as defined below) to be declared effective under the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timeSecurities Act as promptly as practicable.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed The Company shall file, on or before April 15, 2003, with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies a Registration Statement on Form S-4 or any other appropriate form (the “Registration Statement”) under the Securities Act covering the offering of the Registration Statement as so filed and shares of each amendment Broadwing Stock to it, without exhibits, as you may reasonably requestbe offered in exchange for the shares of Preferred Stock in connection with the Exchange Offer.
(c) To prepare the Prospectus, the form and substance of which Nothing in this Agreement shall be satisfactory deemed to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that prevent the Company shall have or BCI from taking, or failing to take, any action that it is obligated to take (or fail to take) in the right to make such further amendments as are required by law to be made and shall forthwith notify you performance of any such amendment; and, during such period, to prepare and file with fiduciary or similar duty which the Commission, promptly upon your reasonable request, any amendment to the Registration Statement Company or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and BCI owes to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualificationPerson; provided, however, that such fiduciary or similar duty shall apply only in the circumstance that BCI or the Company receives an unsolicited offer or expression of bona fide interest from a third party with respect to a potential merger, acquisition, business combination or other strategic combination involving BCI or the Company; it being understood and agreed that if any such action (or failure to act) that the board of directors of BCI or the Company determines to be in the best interests of BCI or the Company would alter the terms of the Exchange Offer and Consent Solicitation in a manner not permitted by Section 6, this Agreement and all of the obligations and undertakings of the parties set forth in this Agreement shall terminate and expire.
(d) The Company shall provide the Stockholders with a reasonable opportunity to review and comment upon the form and substance of the documents and other materials that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating distribute to the Prospectus, Stockholders to effect the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subjectExchange Offer and Consent Solicitation.
(ge) To mail The Company will provide the Stockholders with written notice of any executed amendments, waivers or supplements (other than any amendments, waivers or supplements relating to immaterial, and make generally available non-economic matters) to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) terms of the Act, and to advise you in writing when such statement has been so made available.
Sale Agreement (has defined below) During the period of three years immediately after the date execution of this Agreementany such amendment, waiver or supplement. The Company hereby acknowledges that its failure to furnish provide such notice will preclude the Company’s right to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under terminate this Agreement by the Company prior pursuant to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesSection 7(vi).
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 2 contracts
Sources: Exchange and Voting Agreement (Broadwing Communications Inc), Exchange and Voting Agreement (Broadwing Inc)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of four signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.conformed
Appears in 2 contracts
Sources: Underwriting Agreement (Crown Media Holdings Inc), Underwriting Agreement (Crown Media Holdings Inc)
Agreements of the Company. The Company covenants and agrees with youthe Underwriter[s] as follows:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of the Underwriter[s], pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Underwriter[s] promptly andfollowing such filing.
(b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to the Underwriter[s] within a reasonable period of time prior to the filing thereof and the Underwriter[s] shall not have reasonably objected thereto in good faith.
(c) The Company will notify the Underwriter[s] promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective; (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information, ; (ii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement Statement, the Prospectus or of the suspension of qualification of the Shares for offering or sale in any jurisdictionIssuer Free Writing Prospectus, or the initiation of any proceeding proceedings for such purposes, that purpose or the threat thereof; (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during that in the period referred to in Section 5(d) below which judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Underwriter[s] promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when a Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Shares is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Underwriter[s], it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Underwriter[s], include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Underwriter[s], at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Securities Act or the Rules, forthwith to the Company will promptly notify the Underwriter[s] and will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in Underwriter[s], without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Underwriter[s] may reasonably request. The Company consents to the light use of the circumstances when it is so deliveredProspectus or any amendment or supplement thereto by the Underwriter[s], be misleadingand the Underwriter[s] agree[s] to provide to each Investor, or so that prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto.
(e) The Company will comply furnish to the Underwriter[s] and [its][their] counsel, without charge (i) one conformed copy of the Registration Statement as originally filed with applicable lawthe Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to furnish the Shares is required to each Underwriter and to any dealer be delivered under the Act, as many copies thereof of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as such Underwriter or dealer the Underwriter[s] may reasonably request in writingrequest.
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(g) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter[s].
(h) The Company will retain in accordance with the Rules all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules.
(i) Prior to any public offering the sale of the SharesShares to the Investors, to the Company will cooperate with you the Underwriter[s] and [its][their] counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriter[s] may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gj) To mail The Company will apply the net proceeds from the offering and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) sale of the Act, and to advise you Shares in writing when such statement has been so made availablethe manner set forth in the Prospectus under the caption “Use of Proceeds.”
(hk) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the The Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To will use its best efforts to list for quotation ensure that the Shares are listed on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement NYSE Amex at the time of the effectiveness Closing
(l) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of this Agreement does not cover all the price of the Shares to facilitate the sale or resale of any of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (Xstream Systems Inc), Underwriting Agreement (Xstream Systems Inc)
Agreements of the Company. The Company agrees with youeach of the Underwriters as follows:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements The Company will prepare a supplement to the Prospectus or for additional information, (ii) setting forth the amount of the issuance by Notes covered thereby and the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale terms thereof not otherwise specified in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and substance of which shall be satisfactory to youreallowances, if any, and to file such other information as the Prospectus Underwriters and the Company deem appropriate in such form connection with the Commission within offering of the applicable period specified in Notes, and the Company will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act; during , but the period specified in Section 5(d) below, Company will not to file any further amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus, unless it shall first have delivered copies of such amendments or supplements to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall have reasonably objected thereto promptly after receipt thereof; the Company will immediately advise the Underwriters or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement has become or will become effective and not (ii) of any order or communication suspending or preventing, or threatening to make suspend or prevent, the offer and sale of the Notes or of any amendment proceedings or supplement examinations that may lead to such an order or communication, whether by or of the Prospectus of which you shall not previously have been advised SEC or to which you shall reasonably object after being so advised; providedany authority administering any state securities or Blue Sky law, that as soon as the Company shall have is advised thereof, and will use its best efforts to prevent the right to make such further amendments as are required by law to be made and shall forthwith notify you issuance of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement order or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, communication and to use obtain as soon as possible its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivelifting, if issued.
(db) Prior If, at any time when the Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Notes is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of under the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)Act, any event shall occur or condition shall exist occurs as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Act or the Rules and Regulations, forthwith to the Company promptly will notify the Representative of such event and will promptly prepare and file with the Commission SEC, at its own expense, an appropriate amendment or supplement to such Prospectus that will correct such statement or omission or an amendment that will effect such compliance. Neither the Prospectus so that Representative's consent to, nor the statements Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Prospectus, and all amendments and supplements to such documents relating to the Notes, in each case in such quantities as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer Underwriters may reasonably request in writingrequest.
(e) [Intentionally Omitted]
(f) Prior to any public offering of the Shares, to The Company will cooperate with you and counsel for the Underwriters at the expense of the Sellers and with their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration qualification or qualificationexemptions; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the SharesNotes, in any jurisdiction in which where it is not now so subject.
(g) The Company consents to the use, in accordance with the securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and by dealers, of the Prospectus furnished by the Company.
(h) To mail the extent, if any, that the rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of documents or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Representative terminating this Agreement pursuant to Section 8 or Section 9 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be applied substantially in accordance with the description set forth in the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the retirement of the Notes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the ▇▇▇▇nced Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Financed ▇▇▇dent Loans to show the absolute ownership by the Trustee, as eligible lender of, and the interest of the Company in, the initial Financed Student Loans, and from and after each Closing Date the Company will take, or cause the Servicer, SLC and SLC Receivables to take, as the case may be, such actions with respect to the respective records of each with regard to any additional acquired Student Loans at the time of the acquisition thereof by the Trustee on behalf of the Company and the Company shall not take, or shall permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Financed Student Loans, other than as permitted by the Basic Documents.
(o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company.
(p) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders as soon as practicable securityholders an earnings statement covering a period of at least 12 months beginning after the twelvelater of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-month period ending December 31effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, 2000 that shall which will satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (SLC Student Loan Asset Backed Notes Series 2002-2), Underwriting Agreement (SLC Student Loan Receivables I Inc)
Agreements of the Company. The Unless this Agreement is terminated in accordance with its terms, the Company agrees with youthe Purchasers:
(a) To advise you the Purchasers promptly and, if requested by youthe Purchasers, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus Form S-4 or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Form S-4 or of the suspension of qualification of the Remaining Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement Form S-4 becomes effective, and (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleadingeffective. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementForm S-4, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.;
(b) To furnish not file any post effective amendments to you five photocopies of signed copies the Form S–4 that changes any terms of the Registration Statement as first filed with Exchange Offer, the Commission and Offering or the Restructuring without the prior consent of each amendment to itPurchaser, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you consent shall not previously have been advised or to which you shall reasonably object after being so advisedbe unreasonably withheld; provided, that the Company any Purchaser that reasonably withholds its consent shall have the right be deemed to make such further amendments as are required by law no longer be party to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.this Agreement;
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(fc) Prior to any public offering of the SharesRemaining Shares to, to (i) cooperate with you the Purchasers and counsel for the Underwriters at the expense of the Sellers Purchasers in connection with the registration or qualification of the Remaining Shares for offer and sale by the several Underwriters and by dealers Purchasers under the state securities or Blue Sky laws of such jurisdictions as you the Purchasers may request, (ii) use it commercially reasonable best efforts to continue such registration or qualification in effect so long as required for distribution of the Shares Remaining Shares, and to (iii) file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the ProspectusForm S-4, the Registration Statement, any preliminary prospectus or the offering or sale of the Remaining Shares, in any jurisdiction in which it is not now so subject.;
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(id) To use its commercially reasonable best efforts to list for quotation the Shares Common Stock on the Nasdaq National New York Stock Exchange or the NASDAQ Stock Market as promptly as practicable; provided that the Company shall not be obligated to apply for such listing until such time as it reasonably believes it meets the applicable listing criteria;
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of its counsel and its accountants in connection with the registration and delivery of the Remaining Shares under the Securities Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Form S-4 (including financial statements and exhibits) and all amendments and supplements to maintain any of the foregoing, (ii) all costs and expenses related to the transfer and delivery of the Remaining Shares to the Purchasers, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the purchase, sale or delivery of the Remaining Shares, (iv) all expenses in connection with the registration or qualification of the Remaining Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith, (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Preferred Stock and all costs and expenses incident to the listing of the Remaining Shares on the Nasdaq National NASDAQ Stock Market or the New York Stock Exchange, if applicable, (vi) the cost of printing certificates representing the Remaining Shares, (vii) the costs and charges of any transfer agent, registrar and/or depositary, and (viii) all other costs and expenses incident to the performance of the obligations of the Company hereunder for a period of three years after the date of which provision is not otherwise made in this Agreement.Section;
(jf) To use its commercially reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Remaining Shares.;
(kg) If the Registration Statement Form S-4 at the time of the effectiveness of this Agreement does not cover all of the Remaining Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Remaining Shares not so covered in compliance with Rule 462(b) by 10:00 P.M.as promptly as practicable, New York City timeand in any event prior to the expiration of the Exchange Offer, on and to pay to the date Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act; and
(h) That it shall provide notice to the Purchasers of any breach of this AgreementAgreement and seek to cure the same, in each case as promptly as practicable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Foster Wheeler LTD), Stock Purchase Agreement (Foster Wheeler Inc)
Agreements of the Company. The Company covenants and agrees with youthe Sales Agent as follows:
(a) To advise you promptly andThe Company will not, either prior to the first Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Placement Shares by the Sales Agent or a dealer, file any amendment, supplement or other document under the Exchange Act or the Exchange Act Rules and Regulations relating to the Placement Shares or a security convertible into the Placement Shares, if requested such document would be deemed to be incorporated by youreference into the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Sales Agent for review and comment within a reasonable period of time prior to the filing thereof (which review and comment shall not be unreasonably delayed) (provided, however, that the failure of the Company to obtain the Sales Agent’s review comments shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations and warranties made by the Company in this Agreement).
(b) So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agent or any dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or any similar rule), the Company will notify the Sales Agent promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, in each case, other than documents incorporated by reference, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional informationinformation related to the offering of the Placement Shares or to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, (iiiii) of its receipt of notice or its knowledge of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof, (iv) of the suspension of the qualification of the Placement Shares for offering or and sale in any jurisdiction, or the initiation or threatening of any proceeding for such purposesthat purpose, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of receipt by the happening Company or any representative or counsel to the Company of any event during other communication from the period referred Commission relating to in Section 5(d) below which makes any statement of a material fact made in the Company, the Registration Statement Statement, the Prospectus Supplement, the Prospectus or the Prospectus untrue or which requires any additions to or changes in issuance and sale of the Registration Statement or the Prospectus in order to make the statements therein not misleadingPlacement Shares. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Sales Agent promptly of all such filings. The Company will cause each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Act or, in the case of any document to be incorporated by reference therein, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations. So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agent or any dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or any similar rule), the Company will comply with all requirements imposed upon it by the Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act.
(c) The Company will furnish to the Sales Agent, without charge, written and electronic copies of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, the Prospectus (including all documents incorporated by reference therein), the Prospectus Supplement, each Issuer Free Writing Prospectus and all amendments and supplements thereto that are filed with the Commission during any period that a Prospectus relating to the Placement Shares is required to be delivered under the Act, in each case as soon as reasonably practicable and in such quantities as the Sales Agent may from time to time reasonably request and, at the Sales Agent’s request, will also furnish copies of the Prospectus to each exchange or market on which you shall not previously have been advised or to which you shall reasonably object after being so advisedsales of the Placement Shares may be made; provided, however, that the Company shall have not be required to furnish any document (other than the right Prospectus) to make the Sales Agent to the extent such further amendments document is available on ▇▇▇▇▇.
(d) The Company will use its best efforts to comply with all requirements imposed upon it by the Act and the Exchange Act as are from time to time in force, so far as necessary to permit the sales of, or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(e) So long as delivery of the Prospectus relating to any Placement Shares may be required by law to be made delivered by the Sales Agent or any dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and shall forthwith notify you of Regulations or any such amendment; andsimilar rule), during such period, to the Company will prepare and file with the Commission, promptly upon your reasonable the Sales Agent’s request, any amendment amendments or supplements to the Registration Statement or amendment or supplement to the Prospectus which that, in the Sales Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by youthe Sales Agent (provided, however, that the failure of the Sales Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agent’s right to rely on the representations and to use its reasonable best efforts to cause any such amendment warranties made by the Company in this Agreement). The Company consents to the Registration Statement use of the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto by the Sales Agent and by all dealers to become promptly effective.
(d) Prior to 10:00 A.M.whom the Placement Shares may be sold, New York City time, on both in connection with the first business day after offering or sale of the date Placement Shares and for any period of this Agreement and from time to time thereafter for such period as in during which the opinion of counsel for the Underwriters a prospectus Prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) therewith. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist counsel to the Sales Agent should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will notify the Sales Agent to suspend the offering of Placement Shares during such period and the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Sales Agent, without charge, such number of copies of such supplement or amendment to the Prospectus as the Sales Agent may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which, which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the opinion of counsel for the UnderwritersRegistration Statement, it becomes necessary to amend or supplement the Prospectus Supplement 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 when the Prospectus is delivered to a purchaserprevailing at that subsequent time, not misleading, or ifthe Company will promptly notify the Sales Agent and, in if requested by the opinion of counsel for the UnderwritersSales Agent, it is necessary to will promptly amend or supplement the supplement, at its own expense, such Issuer Free Writing Prospectus to comply with applicable laweliminate or correct such conflict, forthwith to prepare and file with the Commission an appropriate amendment untrue statement or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingomission.
(f) Prior to any public offering of the Shares, to The Company will use its reasonable best efforts and cooperate with you and counsel for the Underwriters at the expense of the Sellers Sales Agent in connection with the registration or qualification of the Placement Shares for offer and sale by the several Underwriters and by dealers under the state or foreign securities or Blue Sky laws of such jurisdictions as you the Sales Agent may request, request and to continue maintain such registration or qualification in effect for so long as required for the distribution of the Placement Shares and to file such consents to service (but in no event for less than one year from the date of process or other documents as may be necessary in order to effect such registration or qualificationthis Agreement); provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject. In each applicable jurisdiction, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such registration or qualification in effect for so long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(g) To mail The Company will, so long as required under the Rules and make generally available Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an earnings annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the Effective Date), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as practicable, but in no event later than 15 months after the end of the Company’s current fiscal quarter, an earning statement covering the twelve-month a period ending December 31, 2000 of 12 months that shall satisfy satisfies the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
Act (h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities including Rule 158 of the Company is listed Rules and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestRegulations).
(i) To Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Sales Agent all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, the Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement to any of the foregoing, including any fees required by the Commission in connection therewith, (ii) the preparation and delivery of certificates, if any, representing the Placement Shares, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Sales Agent, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, the Prospectus Supplement, the Prospectus and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested by the Sales Agent for use its best efforts to list for quotation in connection with the Shares on offering and sale of the Nasdaq National Market and to maintain Placement Shares, (iv) the listing of the Placement Shares on the Nasdaq National Market Exchange, (v) any filings required to be made in connection with clearance of the offering of the Placement Shares with FINRA (including the fees, disbursements and other charges of counsel for a period the Sales Agent in connection therewith), (vi) the registration or qualification of three years after the date Placement Shares for offer and sale under state or foreign securities or Blue Sky laws and the preparation, printing and distribution of any Blue Sky memoranda (including the fees, disbursements and other charges of counsel to the Sales Agent in connection therewith), (vii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (viii) the transfer agent for the Placement Shares and (ix) all other documented costs and expenses of the Sales Agent incident to the performance of its obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Sales Agent (in addition to those set forth in clauses (v) and (vi)); provided, however, that in no event under this Agreementclause (x) shall the Company be required to pay or reimburse any Sales Agent costs and expenses in excess of $50,000 in connection with this Agreement and/or the establishment of the ATM Program and $5,000 for each periodic update of the ATM Program.
(j) To use its reasonable best efforts The Company will not at any time, directly or indirectly, (i) take any action designed or that might reasonably be expected to do and perform all things required cause or necessary to be done and performed under this Agreement by the Company prior to the Closing Date result in, or any Option Closing Datethat will constitute, as the case may be, and to satisfy all conditions precedent to the delivery stabilization of the Sharesprice of the shares of Common Stock to facilitate the sale or resale of any of the Placement Shares or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Sales Agent.
(k) If The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries will be or become, at any time prior to the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date termination of this Agreement, required to register as an “investment company,” as such term is defined in the Investment Company Act.
(l) The Company will use the Net Proceeds in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(m) The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles, (iii) receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s directors’ authorization and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and the applicable regulations thereunder that are designed to ensure that information required to b
Appears in 2 contracts
Sources: Sales Agreement (LiveOne, Inc.), Sales Agreement (LiveXLive Media, Inc.)
Agreements of the Company. The Company covenants and agrees with youthe Placement Agents as follows:
(a) To advise you When the Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly andfollowing such filing.
(b) The Company will use commercially reasonable efforts to keep the Registration Statement effective at all times during the period commencing on the effective date of the Registration Statement and continuing thereafter until the closing of the sale of the Units and for at least six months thereafter, and until such later date that either (i) all Warrants shall have either been exercised in full or terminated or (ii) in the opinion of counsel, an exemption from the registration requirements of applicable federal and state securities laws is available for the issuance of all Securities and the resale thereof (the “Registration Period”).
(c) The Company will not, during the Registration Period, file any amendment or supplement to the Registration Statement or the Prospectus, except as required by law, unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably and timely objected thereto in good faith.
(d) The Company will notify the Placement Agents promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective at any time during the Registration Period; (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectuses or for additional information, information at any time during the Registration Period; (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, the Prospectus or of the suspension of qualification of the Shares for offering or sale in any jurisdictionIssuer Free Writing Prospectus, or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, (iii) when at any amendment to time during the Registration Statement becomes effective, Period; (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during the period referred to Registration Period that in Section 5(d) below which the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Placement Agents promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably requestfilings.
(e) If during If, at any time when a Prospectus relating to the period specified in Section 5(d)Securities is required to be delivered under the Act, the Company becomes aware of the occurrence of any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Placement Agents, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Act or the Rules and Regulations, forthwith the Company will promptly notify the Placement Agents and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in the ProspectusPlacement Agents, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer the Placement Agents may reasonably request in writingrequest. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Placement Agents, and the Placement Agents agree to provide to each Investor, prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto.
(f) The Company will furnish to the Placement Agents and their counsel, without charge (i) one copy of the Registration Statement, including financial statements and schedules, and all exhibits thereto and (ii) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request.
(g) The Company will comply with all the undertakings contained in the Registration Statement.
(h) The Company will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agents, and unless counsel to the Company and the Placement Agents agree that the Company is not an “ineligible issuer” and is otherwise eligible to use a free writing prospectus pursuant to Rule 405;
(i) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations.
(j) Prior to any public offering the sale of the SharesUnits to the Investors, to the Company will cooperate with you the Placement Agents and their counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agents may reasonably and timely request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gk) To mail The Company will apply the net proceeds from the offering and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) sale of the Act, and to advise you Units in writing when such statement has been so made availablesubstantially the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(hl) During the period of three years after the date of this Agreement, The Company will take all actions necessary to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation ensure that the Shares and the Warrant Shares are eligible for trading, when issued on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement OTC Bulletin Board at the time of Closing, to the effectiveness extent such actions are within its control.
(m) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of this Agreement does not cover the price of its Common Stock to facilitate the sale or resale of any of the Securities.
(n) The Company shall comply with all of the Sharesterms and conditions set forth in the Company Lock-Up Agreement, including without limitation, the covenant that it shall not consent to file any request by any other party subject to a Rule 462(b) Registration Statement with lock-up agreement to permit the Commission registering the Shares not so covered in compliance with Rule 462(b) sale by 10:00 P.M., New York City time, on the date such party of this Agreementany shares of Common Stock.
Appears in 2 contracts
Sources: Placement Agency Agreement (GeoVax Labs, Inc.), Placement Agency Agreement (GeoVax Labs, Inc.)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of four signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (Davids Bridal Inc), Underwriting Agreement (Medscape Inc)
Agreements of the Company. The Company agrees with youeach of the Underwriters as follows:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements The Company will prepare a supplement to the Prospectus or for additional information, (ii) setting forth the amount of the issuance by Notes covered thereby and the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale terms thereof not otherwise specified in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and substance of which shall be satisfactory to youreallowances, if any, and to file such other information as the Prospectus Underwriters and the Company deem appropriate in such form connection with the Commission within offering of the applicable period specified in Notes, and the Company will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act; during , but the period specified in Section 5(d) below, Company will not to file any further amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus, unless it shall first have delivered copies of such amendments or supplements to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall have reasonably objected thereto promptly after receipt thereof; the Company will immediately advise the Underwriters or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement has become or will become effective and not (ii) of any order or communication suspending or preventing, or threatening to make suspend or prevent, the offer and sale of the Notes or of any amendment proceedings or supplement examinations that may lead to such an order or communication, whether by or of the Prospectus of which you shall not previously have been advised SEC or to which you shall reasonably object after being so advised; providedany authority administering any state securities or Blue Sky law, that as soon as the Company shall have is advised thereof, and will use its best efforts to prevent the right to make such further amendments as are required by law to be made and shall forthwith notify you issuance of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement order or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, communication and to use obtain as soon as possible its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivelifting, if issued.
(db) Prior If, at any time when the Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Notes is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of under the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)Act, any event shall occur or condition shall exist occurs as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Act or the Rules and Regulations, forthwith to the Company promptly will notify each of the Underwriters of such event and will promptly prepare and file with the Commission SEC, at its own expense, an appropriate amendment or supplement to such Prospectus that will correct such statement or omission or an amendment that will effect such compliance. Neither the Prospectus so that Underwriters' consent to, nor the statements Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Prospectus, and all amendments and supplements to such documents relating to the Notes, in each case in such quantities as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer Underwriters may reasonably request in writingrequest.
(e) No amendment or supplement will be made to the Registration Statement or Prospectus which the Underwriters shall not previously have been advised or to which it shall reasonably object after being so advised.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you and counsel for the Underwriters at the expense of the Sellers and with their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration qualification or qualificationexemptions; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the SharesNotes, in any jurisdiction in which where it is not now so subject.
(g) The Company consents to the use, in accordance with the securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and by dealers, of the Prospectus furnished by the Company.
(h) To mail the extent, if any, that the rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of documents or the taking of any other actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Underwriters terminating this Agreement pursuant to Section 8 or Section 9 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be applied substantially in accordance with the description set forth in the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the retirement of the Notes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Trustee or the Company.
(n) On or before each date that Financed Eligible Loans are pledged under the Indenture, the Company shall ▇▇▇▇ its records relating to the Financed Eligible Loans and shall cause the Servicer and NLS to ▇▇▇▇ their respective computer records relating to the Financed Eligible Loans to show the pledge of such Financed Eligible Loans by the Company to the Trustee, and the Company shall not take, or permit any other person to take, any action inconsistent with the security interest of the Trustee in the Financed Eligible Loans, other than as permitted by the Basic Documents.
(o) For the period beginning on the date of this Agreement and ending 90 days after the final Closing Date, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans other than pursuant to the Nelnet Student Loan Trust 2003-2 transaction; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company.
(p) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders as soon as practicable securityholders an earnings statement covering a period of at least 12 months beginning after the twelvelater of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-month period ending December 31effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, 2000 that shall which will satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (Nelnet Education Loan Funding Inc), Underwriting Agreement (Nelnet Inc)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of three signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December March 31, 2000 2001 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, (ix) the fees and expenses of the QIU (including the fees and disbursements of counsel to the QIU), and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(j) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Netpliance Inc), Underwriting Agreement (Netpliance Inc)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of three signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 1999 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its best efforts obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to list any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for quotation offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of any registration statement on Form 8-A relating to the Common Stock and all costs and any expenses incident to the listing of the Shares on the Nasdaq National Market Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(j) To use its best efforts to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Rural Cellular Corp), Underwriting Agreement (Rural Cellular Corp)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you up to you five photocopies of four signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement (including, without limitation, the issuance or filing of any term sheet within the meaning of Rule 434 under the Act) to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement (including, without limitation, the issuance or filing of any term sheet within the meaning of Rule 434 under the Act) to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December March 31, 2000 1998 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three five years after the date of this Agreement, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the record holders of its Common Stock a financial report of the Company and its subsidiaries, if any, on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent certified public accountants, and (ii) to make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, summary financial statements as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(i) During the period referred to in paragraph (h), to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) To use its best efforts the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to list for quotation the Company's counsel) in connection with the registration and delivery of the Shares on under the Nasdaq Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Market Association of Securities Dealers, Inc., (vi) all costs and expenses incident to maintain the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholders hereunder for which provision is not otherwise made in this Section.
(k) To use its best efforts to maintain the inclusion of the Common Stock on The Nasdaq National Market (or on a national securities exchange) for a period of three five years after the effective date of this Agreementthe Registration Statement.
(jl) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(km) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (May & Speh Inc), Underwriting Agreement (May & Speh Inc)
Agreements of the Company. The Company agrees with youthe Agent that:
(a) To advise you promptly The Company, subject to Section 6(ii), will comply with the requirements of Rule 497, and will notify the Agent as soon as practicable, and, if requested by youin the cases of Sections 6(ii)-(iv), to confirm such advice the notice in writing, (i) when, at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act, any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed in relation to the Shares, (ii) of the receipt of any comments from the Commission relating to the Registration Statement, (iii) of any request by the Commission for amendments any amendment to the Registration Statement or amendments any amendment or supplements supplement to the Prospectus or for additional informationinformation in each case in relation to the Shares, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 497 and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 497 was received for filing by the Commission and, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue issuance of any stop order suspending the effectiveness of the Registration StatementStatement pursuant to Section 8(d) of the 1933 Act, the Company will use its reasonable best efforts and, if any such stop order is issued, to obtain the withdrawal or lifting of such order thereof at the earliest possible timemoment.
(b) To furnish The Company will give the Agent notice of its intention to you five photocopies of signed copies of file or prepare any amendment to the Registration Statement, or any supplement or revision to either the Base Prospectus included in the Registration Statement as first filed with at the Commission and of each time a post-effective amendment thereto most recently became effective or to it, including all exhibitsthe Prospectus Supplement, and to will furnish to you and each Underwriter designated by you such number of conformed the Agent with copies of the Registration Statement as so filed and any such documents a reasonable amount of each amendment time prior to it, without exhibitssuch proposed filing or use, as you the case may reasonably requestbe, and will, in good faith, consider any reasonable comments of the Agent or Agent’s counsel.
(c) To prepare If, at any time when a prospectus relating to the Shares is required to be delivered under the 1933 Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the 1933 Act or the Exchange Act, in each case in relation to the Shares including in connection with use or delivery of the Prospectus, the form and substance of which shall be satisfactory to you, and to file Company promptly will (i) promptly notify the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you Agent of any such amendment; andevent so that any use of the Prospectus may cease or be suspended until it is amended or supplemented or it otherwise complies with the 1933 Act or the Exchange Act, during such period, to (ii) prepare and file with the Commission, promptly upon your subject to the second sentence of paragraph (a) of this Section 6, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its commercially reasonable request, efforts to have any amendment to the Registration Statement or amendment or supplement new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Prospectus which Agent in such quantities as the Agent may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivereasonably request.
(d) Prior As soon as practicable after furnishing with the Commission, the Company will make generally available to 10:00 A.M.its security holders and to the Agent an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158.
(e) The Company will furnish to the Agent, New York City timewithout charge, on the first business day after the date so long as delivery of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is by the Agent or dealer may be required by law to be delivered in connection with sales by an Underwriter or a dealerthe 1933 Act, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to thereto as the Prospectus) as such Underwriter or dealer Agent may reasonably request.
(e) If during . Except as otherwise described herein, the period specified in Section 5(d), any event shall occur Company will pay the expenses of printing or condition shall exist as a result other production of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement all documents relating to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingoffering.
(f) Prior to any public offering of the SharesThe Company will arrange, to cooperate with you and counsel if necessary, for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such states and jurisdictions as you the Agent may request, designate and the Company agrees to continue and will maintain such registration or qualification qualifications in effect so long as required for to complete the distribution and sale of the Shares and to file such consents to service of process or other documents as may be necessary Shares; provided that in order to effect such registration or qualification; provided, however, that no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering The Company will use the twelve-month period ending December 31, 2000 that shall satisfy Net Proceeds in the provisions manner specified in the Prospectus under “Use of Section 11(a) of the Act, and to advise you in writing when such statement has been so made availableProceeds.”
(h) During The Company, during the period of three years after when the date of this AgreementProspectus is required to be delivered under the 1933 Act or the Exchange Act, will file all documents required to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or be filed with the Commission pursuant to the 1940 Act and the Exchange Act within the time periods required by the 1940 Act and the Exchange Act and the rules and regulations of the Commission thereunder, respectively.
(i) The Company will use its best efforts to maintain its qualification as a regulated investment company under Subchapter M of the Code.
(j) The Company will not take, directly or indirectly, any national securities exchange on which action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any class of securities security of the Company is listed to facilitate the sale or resale of the Securities, except as may be allowed by law.
(k) In connection with the offering and such other publicly available information concerning sale of the Shares, the Company will file with NASDAQ all documents and notices, and make all certifications, required of companies that have securities that are listed on NASDAQ and will maintain such listing.
(l) The Company will cooperate with any reasonable due diligence review conducted by the Agent (or its subsidiaries counsel or other representatives), including, without limitation, providing information and making available documents and senior corporate officers, as you the Agent may reasonably request; provided, however, that the Company shall be required to make available documents and senior corporate officers only (i) at the Company’s principal offices and (ii) during the Company’s ordinary business hours. The parties acknowledge that the due diligence review contemplated by this Section 6(l) will include, without limitation, during the term of this Agreement a quarterly diligence conference to occur within five Business Days after each Quarterly 497 Filing whereby the Company will make its senior corporate officers available to address diligence inquiries of the Agent and will provide such additional information and documents as the Agent may reasonably request.
(m) The Company agrees that on such dates as the 1933 Act shall require, the Company will file a Prospectus Supplement with the Commission pursuant to Rule 497 under the 1933 Act, or otherwise include in a filed annual report on Form 10-K or quarterly report on Form 10-Q, which Prospectus Supplement, Form 10-K or Form 10-Q, as applicable, will set forth, within the relevant quarterly or other period, the amount of Shares sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such Shares. To the extent the information set forth in this Section 6(m) is filed in a Prospectus Supplement, the Company agrees to deliver such number of copies of each such Prospectus Supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(n) Upon the commencement of the offering of Shares under this Agreement and each time the Company files a Prospectus relating to the Shares or amends or supplements the Registration Statement or the Prospectus relating to the Shares, in connection with a Quarterly 497 Filing or otherwise, (other than a prospectus supplement filed in accordance with Section 6(m) of this Agreement) by means of a post−effective amendment, sticker, or supplement (each such event shall be deemed a “Representation Date”), the Company and the Adviser shall each furnish the Agent with a certificate, in the form attached hereto as Exhibit 6(n). The requirement to provide a certificate under this Section 6(n) shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with a certificate under this Section 6(n), then before the Agent resumes sales of any Shares, the Company shall provide the Agent with a certificate, in the form attached hereto as Exhibit 6(n).
(o) Upon the commencement of the offering of Shares under this Agreement, the Company shall cause to be furnished to the Agent (i) To use its best efforts a written opinion of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Company, or of such other law firm who may be counsel for the Company from time to list time, (the “Company Counsel”) and (ii) a written opinion of the General Counsel of the Company (“General Counsel”), each dated the commencement of the offering of Shares hereunder in substantially the forms attached hereto as Exhibit 6(o)(1) and Exhibit 6(o)(2), respectively. Thereafter, within five Business Days after each Representation Date, the Company shall cause to be furnished to the Agent (i) a written opinion of Company Counsel and (ii) a written opinion of General Counsel, in substantially the forms attached hereto as Exhibit 6(o)(3) and Exhibit 6(o)(4), respectively, but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented. Notwithstanding the foregoing, the requirement to provide such opinions shall be waived for quotation any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. In the event the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with an opinion from Company Counsel under this Section 6(o), then before the Agent resumes sales of any Shares, the Company shall cause to be furnished to the Agent the opinions of Company Counsel and General Counsel contemplated in this Section 6(o).
(p) Upon the commencement of the offering of Shares under this Agreement, the Company shall cause to be furnished to the Agent a written opinion of V▇▇▇▇▇▇ LLP, Maryland counsel for the Company (“Maryland Counsel”), dated the commencement of the offering of Shares hereunder, in substantially the form attached hereto as Exhibit 6(p).
(q) Upon the commencement of the offering of Shares under this Agreement and thereafter within five Business Days after the end of each fiscal quarter, or any period in which the Prospectus relating to the Shares on is required to be delivered by the Nasdaq National Market and Agent, each time that the Registration Statement is amended or the Prospectus supplemented to maintain include additional amended financial information, the listing Company shall cause its independent accountants to furnish the Agent letters, dated the commencement of the offering of Shares on the Nasdaq National Market for a period of three years after hereunder or the date of each Representation Date, as applicable, in form and substance reasonably satisfactory to the Agent, (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the “Comfort Letter”). The requirement to provide a Comfort Letter under this AgreementSection 6(p) shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with a Comfort Letter under this Section 6(p), then before the Agent resumes sales of any Shares, the Company shall provide the Agent with a Comfort Letter.
(jr) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed Upon the commencement of the offering of Shares under this Agreement by and thereafter within five Business Days after each Representation Date, the Company and the Adviser shall each furnish the Agent with a certificate of its Secretary, in form and substance reasonably satisfactory to the Agent. The requirement to provide certificates under this Section 6(r) shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the Closing next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with the certificates under this Section 6(r), then before the Agent resumes sales of any Shares, the Company shall provide the Agent with such certificates.
(s) Upon the commencement of the offering of Shares under this Agreement and thereafter within five Business Days after each Representation Date, T▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, counsel for the Agent shall furnish to the Agent a written opinion (“Agent Counsel”), dated the commencement of the offering of Shares hereunder, or any Option Closing the Representation Date, as the case may beapplicable, in form and to satisfy all conditions precedent substance reasonably satisfactory to the delivery Agent, but modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinion, counsel may furnish the Agent with a letter to the effect that the Agent may rely on a prior opinion delivered under this Section 6(s) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). The Company agrees to furnish to Agent Counsel such documents as they may reasonably request for the purpose of enabling them to deliver their opinion under this Section 6(s). Notwithstanding the foregoing, the requirement to provide such opinion shall be waived for any Representation Date occurring during a fiscal quarter during which the Company does not intend to sell Shares prior to the next occurring Representation Date. In the event the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and Agent Counsel did not provide the Agent with its opinion under this Section 6(s), then before the Agent resumes sales of any Shares, Agent Counsel shall furnish to the Agent its opinion contemplated in this Section 6(s).
(kt) If At each Representation Date, the Registration Statement at Company will conduct a due diligence session, in form and substance reasonably satisfactory to the time Agent, which shall include representatives of the effectiveness of this Agreement does not cover all management and the accountants of the Shares, Company. The requirement to file conduct due diligence sessions under this Section 6(t) shall be waived for any Representation Date occurring during a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.fiscal quar
Appears in 2 contracts
Sources: Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of four signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (P F Changs China Bistro Inc), Underwriting Agreement (P F Changs China Bistro Inc)
Agreements of the Company. The Company agrees with youthe Underwriters as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Effective Date or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by any Underwriter or any dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172), file any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to the filing thereof and the Representatives shall not have objected thereto in good faith.
(b) The Company will notify the Representatives promptly, and will confirm such advice in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, (2) of the receipt of any comments from or any request by the Commission for amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus or amendments or supplements to the Prospectus or for additional information, (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in Statement, any jurisdiction, notice objecting to its use or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of the happening of any event during the period referred to mentioned in the second sentence of Section 5(d5(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading, and (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any Preliminary Prospectus or the Prospectus. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment.
(bc) To The Company will furnish to you five photocopies the Representatives, without charge, four copies of the signed copies of the Registration Statement as first filed with the Commission and of each any post-effective amendment to itthereto, including all exhibitsfinancial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) and will furnish to you and the Representatives, without charge, for transmittal to each Underwriter designated by you such number of conformed the other Underwriters, copies of the Registration Statement as so filed and of each any post-effective amendment to itthereto, including financial statements and schedules but without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) The Company will deliver to 10:00 A.M.each of the Underwriters, New York City timewithout charge, on as many copies of the first business day after Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto, as the date Representatives may reasonably request. The Company consents to the use of this Agreement the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto by the several Underwriters and from time by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter for such period as in during which the opinion of counsel for the Underwriters a prospectus Prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, therewith (including in circumstances where such requirement may be satisfied pursuant to furnish in New York City to each Underwriter and any dealer as many copies Rule 172 of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) Act). If during the such period specified in Section 5(d), of time any event shall occur which in the judgment of the Company or condition counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, subject to the provisions of Section 5(a) hereof, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request. The Company shall exist not file any document under the Exchange Act before the termination of the offering of the Shares by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus which is not approved by the Representatives after reasonable notice thereof. If there occurs an event or development as a result of which, in which the opinion General Disclosure Package would include an untrue statement of counsel for the Underwriters, it becomes a material fact or would omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen prevailing, not misleading, or if, in the opinion Company will notify promptly the Representatives so that any use of counsel for the Underwriters, General Disclosure Package may cease until it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you the Representatives and counsel for to the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Representatives may reasonably request, to continue such registration or qualification ; provided that in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail During the period of five years commencing on the date hereof, the Company will furnish to each of the Representatives and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to each of the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its stockholders securities as soon as may be practicable an but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, a consolidated earnings statement covering (which need not be audited but shall be in reasonable detail), with respect to the twelve-month Primary Entities, for a period ending December 31of 12 months commencing after the Effective Date, 2000 that shall satisfy and satisfying the provisions of Section 11(a) of the Act, Act (including Rule 158 thereunder) and will file such earnings statement as an exhibit to advise you in writing when such statement has been so made available.
(hthe next periodic report required by Section 13 or 15(d) During of the Exchange Act covering the period of three years after when the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company earnings statement is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestreleased.
(i) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 9 hereof or by notice given by you terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) reasonably incurred by you in connection herewith.
(j) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of any of the Shares in violation of the Act.
(k) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(l) The Company will use its best efforts to list for quotation have the Shares listed, subject to notice of issuance, on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this AgreementNew York Stock Exchange.
(jm) To use its reasonable best efforts to do The Company represents and perform all things required or necessary to be done agrees that, unless it obtains the prior written consent of the Representatives, and performed under this Agreement by each Underwriter, severally and not jointly, represents and agrees with the Company prior to the Closing Date that, unless it has obtained or any Option Closing Datewill obtain, as the case may be, the prior written consent of the Company and to satisfy all conditions precedent the Representatives, it has not made and will not make any offer relating to the delivery Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the SharesAct) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an Issuer Free Writing Prospectus as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Shares or their offering or (ii) information that describes the final terms of the Shares or their offering.
(kn) If During the Registration Statement at period beginning from the time date hereof and continuing to and including the date 60 days after the date of the effectiveness Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of this Agreement does not cover all any securities of the Company that are substantially similar to the Shares, including but not limited to file a Rule 462(b) Registration Statement with any options or warrants to purchase shares of Common Stock or any securities that are convertible into or exchangeable for, or that represent the Commission registering right to receive, Common Stock or any such substantially similar securities (other than pursuant to employee stock option plans existing on, or upon the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M.conversion or exchange of convertible or exchangeable securities outstanding as of, New York City time, on the date of this Agreement), without your prior written consent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ps Business Parks Inc/Ca), Underwriting Agreement (Ps Business Parks Inc/Ca)
Agreements of the Company. The Company covenants and agrees with youthe Underwriters as follows:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of Aegis, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Aegis promptly andfollowing such filing.
(b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to Aegis within a reasonable period of time prior to the filing thereof and Aegis shall not have reasonably objected thereto in good faith.
(c) The Company will notify the Underwriters promptly, and will, if requested by yourequested, to confirm such advice notification in writing, : (i) when any post- effective amendment to the Registration Statement becomes effective; (ii) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or for additional information, ; (iiiii) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement or of Statement, the suspension of qualification of the Shares for offering or sale in any jurisdictionProspectus, or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effective, threat thereof; (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) becoming aware of the happening occurrence of any event during that in the period referred to in Section 5(d) below which judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Underwriters promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when a Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Shares is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Securities Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or Underwriter Counsel, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or Underwriter Counsel, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or Underwriter Counsel, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Securities Act or the Rules and Regulations, forthwith the Company will promptly notify Aegis and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission Commission, at the Company's expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in Underwriters, without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Underwriters may reasonably request. The Company consents to the light use of the circumstances when it is so deliveredProspectus or any amendment or supplement thereto by the Underwriters.
(e) The Company will furnish to the Underwriters and Underwriter Counsel, be misleadingwithout charge: (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, or so that the Prospectus will comply with applicable lawincluding financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to furnish the Shares is required to each Underwriter and to any dealer be delivered under the Securities Act, as many copies thereof of the Prospectus or any amendment or supplement thereto as such Underwriter or dealer the Underwriters may reasonably request in writingrequest.
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(g) The Company represents and agrees that, except for the Approved FWP, it has not and will not, unless it obtains the prior consent of Aegis, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Shares that would constitute an "issuer free writing prospectus," as defined in Rule 433 promulgated under the Securities Act, or that would otherwise constitute a "free writing prospectus," as defined in Rule 405 promulgated under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Aegis (including the Approved FWP) 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 promulgated under the Securities Act, and has complied and will comply with the requirements said Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company will retain in accordance with the Rules and Regulations all Permitted Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations.
(h) Prior to any public offering the sale of the SharesShares to the Investors, to the Company will cooperate with you Aegis and counsel for the Underwriters at the expense of the Sellers Underwriter Counsel in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you Aegis may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualificationif any; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gi) To mail The Company will apply the net proceeds from the offering and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) sale of the ActOffered Securities in the manner set forth in the Prospectus under the caption "Use of Proceeds." Without the written consent of Aegis, and which shall not be unreasonably withheld, conditioned or delayed, no proceeds of the Offering will be used to advise you in writing when such statement has been so made availablepay outstanding loans from officers, directors or stockholders.
(hj) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the The Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To will use its best efforts to list for quotation ensure that the Shares are listed on the Nasdaq National NASDAQ Capital Market at the time of the Initial Closing, and seeking and using its best efforts to maintain such listing for a period of at least three (3) years after the listing Closing.
(k) The Company shall retain a firm of independent certificate public accountants, acceptable to Aegis, which will have the responsibility for the preparation of the Shares on financial statements and the Nasdaq National Market financial exhibits, if any, to be included in the Registration Statement and continuing to retain such accountants, or comparable accountants, for a period of at least three (3) years after the Closing.
(l) The Company shall retain a transfer agent for the Company's Common Stock and continue to retain such transfer agent, or a comparable firm, for a period of three (3) years after the date of this AgreementClosing.
(jm) To use its reasonable best efforts The Company shall engage a financial public relations firm reasonably acceptable to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may betheir relations with their security holders, and continue to satisfy all conditions precedent retain such firm, or a comparable firm, for a period of two (2) years after the Closing.
(n) The Company shall register with the Corporation Records Service published by Standard & Poor's Corporation and covenant to maintain such registration for a period of three (3) years from the delivery Closing.
(o) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of any of the Shares.
(kp) If The Company shall, upon the Registration Statement reasonable request of the Underwriters, deliver written affirmation of any certificate delivered to the Underwriters pursuant to Section 7 prior to any Closing Date following the Initial Closing Date.
(q) The Company shall supply Aegis and its counsel, at the time Company's costs, with a reasonable number of bound volumes of the effectiveness public offering materials within a reasonable time after the Closing, as well as a reasonable number of this Agreement does not cover all commemorative Lucite tombstones as requested by Aegis.
(r) Upon the Closing, the Company will grant Aegis the right of first refusal to co-manage any public underwriting or private placement of debt or equity securities (excluding (i) sales to employees under any compensation or stock option plan approved by the shareholders of the SharesCompany, (ii) shares issued in payment of the consideration for an acquisition and (iii) conventional banking arrangements and commercial debt financing) of the Company or any subsidiary or successor of the Company during the one year period following the Closing Date. If Aegis accepts such right of first refusal, Aegis shall be entitled to file no less than 33.33% of the underwriting, non-accountable expenses allowance, warrant coverage or other investment banking compensation for any such offering and shall act as the lead manager of any such offering. If Aegis fails to accept in writing any such proposal for such public or private sale within 20 days after receipt of a Rule 462(b) Registration Statement written notice from the Company containing such proposal, then Aegis will have not claim or right with the Commission registering the Shares not so covered respect to any such sale contained in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreementany such notice.
Appears in 2 contracts
Sources: Underwriting Agreement (Iron Eagle Group, Inc.), Underwriting Agreement (Iron Eagle Group, Inc.)
Agreements of the Company. The Company agrees with youeach Underwriter:
(a) To The Company shall furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under (or otherwise obtaining exemptions from the application of) the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Shares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares) where it is not presently qualified..
(b) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will use its reasonable best efforts to cause such post-effective amendment to become effective as soon as possible and will advise you the Representative promptly and, if requested by youthe Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) The Company shall prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 5:30 p.m. (New York City time), on February 4, 2021 or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 5:30 p.m. New York City time) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree to the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T of the Securities Act.
(d) The Company shall advise the Representative promptly and (if requested by the Representative) to confirm such advice in writing, (i) of when any request by the Commission for amendments post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company shall furnish a copy of each proposed Issuer Free Writing Prospectus, if any, to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent will not be unreasonably withheld or delayed) prior to referring to, using or filing with the Commission any Issuer Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto.
(f) The Company shall comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable.
(g) The Company shall advise the Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional informationinformation with respect thereto, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposespurposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) when any amendment examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement becomes effectiveStatement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein, and shall advise the Representative promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, during the time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, to file no such amendment or supplement to which the Representative shall reasonably object in writing.
(h) To the extent not available on ▇▇▇▇▇, the Company shall furnish to the Underwriters for a Rule 462(bperiod of two years from the date of this Agreement (i) Registration Statement as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of the Common Stock, (ii) as soon as practicable after the effectiveness filing thereof, copies of all reports filed by the Company with the Commission, FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Company and the Subsidiaries; provided, however, that the requirements of this AgreementSection shall be satisfied to the extent that such reports, when statements, communications, financial statements or other documents are available on ▇▇▇▇▇.
(i) The Company shall advise the Rule 462(b) Registration Statement has become effective and (v) Underwriters promptly of the happening occurrence of any event or development known to the Company within the time during which a Prospectus relating to the period Shares (or in lieu thereof the notice referred to in Section 5(dRule 173(a) below which makes under the Securities Act) is required to be delivered under the Securities Act which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions omit to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are state a material fact required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement stated therein or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or if, would conflict with the information contained in the opinion of counsel for Registration Statement relating to the UnderwritersShares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with applicable lawany law and, forthwith during such time, to promptly prepare and file furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the statements in Prospectus or the Prospectus, Disclosure Package as so amended or supplementedsupplemented will not, will not in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is so delivered, be misleadingmisleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with applicable the law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(fj) Prior The Company shall file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation and filing of the Registration Statement, the Preliminary Prospectus and the Prospectus, any Issuer Free Writing Prospectus and each amendment or supplement to any public of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Prospectus, Issuer Free Writing Prospectus and the Registration Statement and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares to the Underwriters; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares, to cooperate with you ; (v) any expenses and counsel fees for the Underwriters at the expense cost of the Sellers in connection with the ratings agencies; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification and the preparation of the blue sky memorandum); (vii) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses of the Company’s officers in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the costs and expenses of causing the Shares to be eligible for clearance and settlement through DTC; (xi) reasonable and documented out-of-pocket, accountable, bona fide expenses incurred by the several Underwriters in connection with its services under this Agreement, including any fees and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution disbursements of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualificationUnderwriters’ legal counsel; provided, however, provided that the Company shall not be required to reimburse the fees and disbursements of such legal counsel in connection therewith excess of $85,000; provided further that the Company shall not be required to register or qualify as reimburse any fees and expenses in excess of $150,000 in the aggregate; (xii) a foreign corporation structuring fee of $562,500 to be paid in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating cash to the ProspectusRepresentative on the Closing Date, and, in the event the option to purchase Option Shares is exercised by the Underwriters in full, an additional structuring fee of $84,375 to be paid in cash to the Representative on the Option Closing Date; and (xiii) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(l) Prior to filing with the Commission any amendment or supplement to the Registration Statement, any preliminary prospectus Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, during the offering time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, is required to be delivered under the Securities Act, the Company shall furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent shall not be unreasonably withheld or delayed) to the filing.
(m) During the period referred to in paragraph (j) above, the Company shall file all such documents in the manner and within the time periods required by the Exchange Act.
(n) The Company shall apply the net proceeds of the sale of the SharesShares in accordance with its statements under the caption “Use of Proceeds” in the Registration Statement, in any jurisdiction in which it is not now so subjectthe Prospectus and the Disclosure Package.
(go) To mail and The Company shall make generally available to its stockholders security holders and to deliver to the Representative as soon as practicable practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act, and to advise you in writing when such statement has been so made available) covering a period of 12 months beginning after the effective date of the Registration Statement.
(hp) During the For a period of three years 60 days after the date of this Agreementthe Prospectus, the Company will not (i) offer, pledge, sell, contract to furnish sell, sell any option or contract to you upon your written request copies of all reports purchase, purchase any option or other communications furnished contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, or file with the record holders Commission a registration statement under the Securities Act relating to, any shares of Common Stock or furnished any securities convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filed with filing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the Commission economic consequences of ownership of the Common Stock or any national securities exchange on which such other securities, whether any class such transaction described in clause (i) or (ii) above is to be settled by delivery of securities Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Underwriter, other than (1) the Shares to be sold hereunder, (2) any shares of Common Stock of the Company is listed and such awarded, issued upon the exercise of options or purchase rights, issued upon vesting of equity awards and/or settlement of other publicly available information concerning awards granted under the Company’s equity incentive plans, (3) the grant of stock options, restricted stock awards, restrictive stock units or any other awards under the Company’s equity incentive plans, (4) the filing by the Company of registration statements on Form S-8 with respect to benefit plans described in the Registration Statement, the Disclosure Package and the Prospectus, (5) the issuance of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding as of the date hereof and (6) the filing of a registration statement by the Company, or any amendments or supplements thereto, in accordance with its subsidiaries as you may reasonably requestobligations under the Registration Rights Agreement to which it is a party, dated December 12, 2020.
(iq) To use its best efforts The Company will not take, directly or indirectly, without giving effect to list for quotation activities by the Shares on Underwriter, as to which the Nasdaq National Market and Company makes no representation, any action designed to maintain the listing or that would reasonably be expected to cause or result in any stabilization or manipulation of the Shares on price of the Nasdaq National Market for a period of three years after the date of this AgreementCommon Stock.
(jr) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the The Company prior is not and, after giving effect to the Closing Date or any Option Closing Date, as the case may be, offering and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all sale of the Shares, to file a Rule 462(b) Registration Statement with will not be an “investment company” as such terms are defined in the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementInvestment Company Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of any of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective effective, and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of (5) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M.4:00 P.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and or make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31September 30, 2000 2001 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to list for quotation pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel that the Company is obligated to pay by contract (in addition to the Company's counsel) in connection with the registration and delivery of the Shares on under the Nasdaq Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto not to exceed $15,000), (v) the filing fees and fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Market Association of Securities Dealers, Inc., (vi) all costs and expenses incident to maintain the listing of the Shares on the Nasdaq National Market New York Stock Exchange (the "NYSE"), (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident solely to the performance of the obligations of the Company and the Selling Stockholders hereunder for a period of three years after the date which provision is not otherwise made in this Section. The provisions of this AgreementSection shall not supersede or otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of such expenses among themselves.
(j) To use its reasonable best efforts to list the Shares on the NYSE.
(k) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company on or prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Managers as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or amendments or supplements to the Prospectus Prospectuses or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during event, including the period referred filing of any information, documents or reports pursuant to in Section 5(d) below which the Exchange Act, that makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge, three signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibits, exhibits to the Registration Statement and to will also furnish to you and each Underwriter designated by you you, without charge, such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may reasonably request.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bThe Company will not (i) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised; providedadvised or (ii) so long as, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the written opinion of counsel for the Underwriters Managers (a copy of which shall be delivered to the Company), a prospectus is required by law to be delivered in connection with sales by an Underwriter any Manager or a dealer, file any information, documents or reports pursuant to furnish the Exchange Act, without delivering a copy of such information, documents or reports to you, as Lead Managers for the Managers, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in New York City such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the International Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by dealers, prior to the date of the International Prospectus, of each International Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the Managers an International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer, the Company will expeditiously deliver to each Underwriter Manager and any dealer each dealer, without charge, as many copies of the International Prospectus (and of any amendment or supplement thereto) as you may reasonably request for a period of nine months after the date of this Agreement; provided, however, that if a request for copies of the Prospectuses is made by any Manager or dealer after such nine-month period, the costs associated with the preparing and filing of any post-effective amendment to the ProspectusRegistration Statement or any amendment or supplement to the Prospectuses and delivery of the Prospectuses (and of any amendment or supplement thereto) shall be borne by such Manager or dealer. The Company consents to the use of the International Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as such Underwriter the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer may reasonably request.
(e) dealer. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, that in the judgment of the Company or in the written opinion of counsel for the Underwriters, it becomes necessary Managers is required to amend be set forth in the International Prospectus (as then amended or supplement the Prospectus supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the International Prospectus in order to comply with applicable the Act or any other law, forthwith the Company will make every reasonable effort to prepare and, subject to the provisions of paragraph (d) above and this paragraph (f), file with the Commission an appropriate supplement or amendment or supplement thereto, and will expeditiously furnish to the Prospectus so Managers and dealers a reasonable number of copies thereof. Each Manager agrees that the statements in after receipt of any supplement or amendment to the Prospectus, it will not deliver the Prospectus other than as so supplemented or amended. In the event that the Company and you, as Lead Managers for the several Managers, agree that the International Prospectus should be amended or supplemented, the Company, if reasonably requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers Managers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters Managers and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to taxation or service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed New York Stock Exchange, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(ij) To use its best efforts If this Agreement shall terminate or shall be terminated after execution pursuant to list for quotation any provisions hereof (otherwise than pursuant to the Shares second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Managers because of any failure or refusal on the Nasdaq National Market part of the Company or any of the Selling Shareholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Lead Managers for all reasonable out-of-pocket expenses (including reasonable fees and to maintain expenses of counsel for the listing Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares on to be sold by it hereunder substantially in accordance with the Nasdaq National Market for description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will make every reasonable effort to timely file the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) For a period of three years 180 days after the date hereof (the "Lock-up Period"), the Company will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock that are exercisable during the Lock-up Period, except for (i) sales to the Managers pursuant to this Agreement and the U.S. Underwriters pursuant to the U.S. Underwriting Agreement, (ii) the issuance of shares upon exercise of outstanding options and (iii) the issuance of shares in connection with acquisitions, provided that the recipients of such shares agree not to sell the shares during the Lock-up Period.
(jn) To use The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current executive officers and directors and will make every reasonable best efforts effort to do and perform all things required or necessary furnish to be done and performed under you "lock-up" letters signed by each of its shareholders designated by you.
(o) Except as stated in this Agreement by and in the U.S. Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company prior has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Closing Date price of the Common Stock to facilitate the sale or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery resale of the Shares.
(kp) If The Company will use its best efforts to have the Registration Statement at Common Stock listed, subject to notice of issuance, on the time of New York Stock Exchange concurrently with the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementStatement.
Appears in 1 contract
Sources: International Underwriting Agreement (Pierce Leahy Corp)
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as reasonably practicable and will advise you promptly and, if requested by you, to will confirm such advice in writing, when it receives notice that the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of its receipt of notice of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, ; (ii) of its receipt of notice of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of its becoming aware of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the mak- ing of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies you, without charge, (i) such number of signed copies of the Registration Statement registration statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits to the registration statement as you may reasonably request, and to furnish to you and each Underwriter designated by you (ii) such number of conformed copies of the Registration Statement registration statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) three copies of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bThe Company will not (i) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; providedadvised or (ii) so long as, that in the Company shall have opinion of counsel for the right to make such further amendments as are Underwriters, a Prospectus is required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable delivered in connection with sales by any Underwriter or dealer, file any information, documents or reports pursuant to the distribution Securities Exchange Act of 1934, as amended (the "Exchange Act") without delivering a copy of such information, documents or reports to you, as representatives of the Shares by youUnderwriters, and prior to use its reasonable best efforts to cause any or concurrently with such amendment to the Registration Statement to become promptly effectivefiling.
(de) Prior to 10:00 A.M.the execution and delivery of this Agreement, New York City timethe Company has delivered to you, on without charge, in such quantities as you have requested, copies of each form of the first business day after Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a dealer, to furnish in New York City the Company will expeditiously deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the Prospectususe of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as such the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer may reasonably request.
(e) dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment or supplement thereto, and will expeditiously furnish to the Prospectus so Underwriters and dealers a reasonable number of copies thereof. In the event that the statements in the ProspectusCompany and you, as so Representatives of the several Underwriters, agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification notice of the offering and sale of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification designate; provided that in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(all(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company or the Selling Stockholder to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not sell, contract to sell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or grant any options or warrants to purchase Common Stock, for a period of 90 days after the date of this Agreementthe Prospectus, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.; PROVIDED that the Company shall be permitted to furnish to you upon your written request copies of all reports or other communications furnished (i) grant options pursuant to the record holders of ▇▇▇▇▇▇▇▇ Casting Corporation 1993 Incentive Stock Plan and the ▇▇▇▇▇▇▇▇ Casting Corporation Non-Employee Director Option Plan and to issue Common Stock or furnished upon the exercise of any option granted under either such plan, (ii) issue Common Stock pursuant to or filed with the Commission or any national securities exchange on 1993 ▇▇▇▇▇▇▇▇ Casting Corporation Employee Stock Purchase Plan and (iii) issue Common Stock pursuant to the Employee Stock Incentive Agreements to which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares a party on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jn) To use its reasonable best efforts The Company has furnished or will furnish to do you "lock-up" letters, in form and perform all things required or necessary substance satisfactory to be done you, signed by each of the current officers and performed under directors of the Company set forth on Schedule II hereto.
(o) Except as stated in this Agreement by and in the Prepricing Prospectus and Prospectus, the Company prior has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Closing Date price of the Common Stock to facilitate the sale or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery resale of the Shares.
(kp) If The Company will use its best efforts to have the Registration Statement at the time shares of the effectiveness of Common Stock which it agrees to sell under this Agreement does not cover all listed, subject to notice of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City timeissuance, on the date of this AgreementNew York Stock Exchange on or before the Closing Date. 6.
Appears in 1 contract
Agreements of the Company. 79394591;2 The Company covenants and agrees with youeach Sales Agent as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the first Applicable Time or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Placement Shares by the Sales Agents or a dealer, file any amendment or supplement, unless a copy thereof shall first have been submitted to the Sales Agents for approval within a reasonable period of time prior to the filing thereof (provided, however, that the failure of the Company to obtain the Sales Agents’ approval shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agents’ right to rely on the representations and warranties made by the Company in this Agreement).
(b) So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agents or any dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or any similar rule), the Company will notify the Sales Agents promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, in each case, other than documents incorporated by reference, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional informationinformation related to the offering of the Placement Shares or to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, (iiiii) of its receipt of notice or its knowledge of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof, (iv) of the suspension of the qualification of the Placement Shares for offering or and sale in any jurisdiction, or the initiation or threatening of any proceeding for such purposesthat purpose, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of receipt by the happening Company or any representative or counsel to the Company of any event during other communication from the period referred Commission relating to in Section 5(d) below which makes any statement of a material fact made in the Company, the Registration Statement Statement, the Prospectus Supplement, the Prospectus or the Prospectus untrue or which requires any additions to or changes in issuance and sale of the Registration Statement or the Prospectus in order to make the statements therein not misleadingPlacement Shares. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement or preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Sales Agents promptly of all such filings if not available on EDGAR. The Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Act or, in the case of any document to be incorporated by reference therein, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations. So long as delivery of the Prospectus relating to any Placement Shares may be required to be delivered by the Sales Agents or any dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations or any similar rule), the Company will comply with all requirements imposed upon it by the Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act.
(c) The Company will furnish to the Sales Agents, without charge, written and electronic copies of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, the Prospectus (including all documents incorporated by reference therein), the Prospectus Supplement, each Issuer Free Writing Prospectus and all amendments and supplements thereto that are filed with the Commission during any period that a Prospectus relating to the Placement Shares is required to be delivered under the Act, in each case as soon as reasonably practicable and in such quantities as the Sales Agents may from time to time reasonably request and, at the Sales Agents’ request, will also furnish copies of the Prospectus to each 79394591;2 exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required to furnish any document (other than the Prospectus) to the Sales Agents to the extent such document is available on ▇▇▇▇▇.
(d) The Company will use its reasonable best efforts to obtain comply with all requirements imposed upon it by the withdrawal Act and the Exchange Act as from time to time in force, so far as necessary to permit the sales of, or lifting of such order at dealings in, the earliest possible timePlacement Shares as contemplated by the provisions hereof and the Prospectus.
(be) To furnish to you five photocopies of signed copies So long as delivery of the Registration Statement as first filed with Prospectus relating to any Placement Shares may be required to be delivered by the Commission and of each amendment Sales Agents or any dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies Rule 172 of the Registration Statement as so filed Rules and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the ProspectusRegulations or any similar rule), the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to will prepare and file with the Commission, promptly upon your the Sales Agents’ reasonable request, any amendment amendments or supplements to the Registration Statement or amendment or supplement to the Prospectus which that, in the Sales Agents’ reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by youthe Sales Agents (provided, however, that the failure of the Sales Agents to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Sales Agents’ right to rely on the representations and to use its reasonable best efforts to cause warranties made by the Company in this Agreement); provided, however, that the Company may delay any such amendment or supplement if, in the judgment of the Company, it is in the best interest of the Company to do so, provided that no Placement Notice is in effect during such time. The Company consents to the Registration Statement use of the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto by the Sales Agents and by all dealers to become promptly effective.
(d) Prior to 10:00 A.M.whom the Placement Shares may be sold, New York City time, on both in connection with the first business day after offering or sale of the date Placement Shares and for any period of this Agreement and from time to time thereafter for such period as in during which the opinion of counsel for the Underwriters a prospectus Prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) therewith. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist counsel to the Sales Agents should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will notify the Sales Agents to suspend the offering of Placement Shares during such period and the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Sales Agents, without charge, such number of copies of such supplement or amendment to the Prospectus as the Sales Agents may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which, which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the opinion of counsel for the UnderwritersRegistration Statement, it becomes necessary to amend or supplement the Prospectus Supplement 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 when the Prospectus is delivered to a purchaserprevailing at that subsequent time, not misleading, or ifthe Company will promptly notify the Sales Agents and, in if requested by the opinion of counsel for the UnderwritersSales Agents, it is necessary to will promptly amend or supplement the supplement, at its own expense, such Issuer Free Writing Prospectus to comply with applicable laweliminate or correct such conflict, forthwith to prepare and file with the Commission an appropriate amendment untrue statement or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingomission.
(f) Prior to any public offering of the Shares, to The Company will use its reasonable best efforts and cooperate with you and counsel for the Underwriters at the expense of the Sellers Sales Agents in connection with the registration or qualification of the Placement Shares for offer and sale by the several Underwriters and by dealers under the state or foreign securities or Blue Sky laws of such jurisdictions as you the Sales Agents may request, request and to continue maintain such registration or qualification in effect for so long as required for the distribution of the Placement Shares and to file such consents to service (but in no event for less than one year from the date of process or other documents as may be necessary in order to effect such registration or qualificationthis Agreement); provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject. In each applicable jurisdiction, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such registration or qualification in effect for so long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(g) To mail and The Company will make generally available to holders of its stockholders securities as soon as practicable practicable, but in no event later than 15 months after the end of the Company’s current fiscal quarter, an earnings earning statement covering the twelve-month a period ending December 31, 2000 of 12 months that shall satisfy satisfies the provisions of Section 11(a) of the ActAct (including Rule 158 of the Rules and Regulations), and provided that the Company will be deemed to advise you in writing when have furnished such statement has been so made available.to its security holders to the extent it is available on ▇▇▇▇▇. 79394591;2
(h) During Whether or not the period of three years after transactions contemplated by this Agreement are consummated or this Agreement is terminated, the date of this Agreement, to furnish to you upon your written request copies of Company will pay or reimburse if paid by the Sales Agents all reports or other communications furnished costs and expenses incident to the record holders performance of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities obligations of the Company is listed under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, the Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement to any of the foregoing, including any fees required by the Commission in connection therewith, (ii) the preparation and delivery of certificates, if any, representing the Placement Shares, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Sales Agents, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, the Prospectus Supplement, the Prospectus and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested by the Sales Agents for use in connection with the offering and sale of the Placement Shares, (iv) the listing of the Placement Shares on the Exchange, (v) any filings required to be made in connection with clearance of the offering of the Placement Shares with FINRA (including the fees, disbursements and other publicly available information concerning charges of counsel for the Sales Agents in connection therewith), (vi) the registration or qualification of the Placement Shares for offer and sale under state or foreign securities or Blue Sky laws and the preparation, printing and distribution of any Blue Sky memoranda (including the fees, disbursements and other charges of counsel to the Sales Agents in connection therewith), (vii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (viii) the transfer agent for the Placement Shares and (ix) all other costs and expenses of the Sales Agents incident to the performance of its subsidiaries as you may reasonably requestobligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Sales Agents (in addition to those set forth in clauses (v) and (vi)); provided, however, that in no event under this clause (ix) shall the Company be required to pay or reimburse the costs and expenses of the Sales Agents in excess of an aggregate of $65,000 in connection with the establishment of the ATM Program and an aggregate of $5,000 for each periodic update of the ATM Program.
(i) To use its best efforts The Company will not at any time, directly or indirectly, (i) take any action designed or that would reasonably be expected to list for quotation the Shares on the Nasdaq National Market and to maintain the listing cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Placement Shares on or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Nasdaq National Market for a period of three years after Placement Shares other than the date of this AgreementSales Agents.
(j) To use The Company will conduct its reasonable best efforts affairs in such a manner so as to do and perform all things required reasonably ensure that neither it nor any of its Subsidiaries will be or necessary to be done and performed under this Agreement by the Company become, at any time prior to the Closing Date or any Option Closing Datetermination of this Agreement, required to register as an “investment company,” as such term is defined in the case may be, and to satisfy all conditions precedent to the delivery of the SharesInvestment Company Act.
(k) If The Company will use the Registration Statement at Net Proceeds in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(l) The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles, (iii) receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s directors’ authorization and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that would have a material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and the applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time of periods 79394591;2 specified in the effectiveness of this Agreement does not cover all of Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the SharesCompany in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.including its principal executive officer and principal f
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach Underwriter:
(a) To The Company shall furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under (or otherwise obtaining exemptions from the application of) the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Shares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares) where it is not presently qualified.
(b) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will use its reasonable best efforts to cause such post-effective amendment to become effective as soon as possible and will advise you the Representative promptly and, if requested by youthe Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) The Company shall prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 5:30 p.m. (New York City time), on June 11, 2021 or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 5:30 p.m. New York City time) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree to the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version transmitted to the Commission for filing via E▇▇▇▇, except to the extent permitted by Regulation S-T of the Securities Act.
(d) The Company shall advise the Representative promptly and (if requested by the Representative) to confirm such advice in writing, (i) of when any request by the Commission for amendments post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company shall furnish a copy of each proposed Issuer Free Writing Prospectus, if any, to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent will not be unreasonably withheld or delayed) prior to referring to, using or filing with the Commission any Issuer Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto.
(f) The Company shall comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable.
(g) The Company shall advise the Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional informationinformation with respect thereto, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposespurposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) when any amendment examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement becomes effectiveStatement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein, and shall advise the Representative promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, during the time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, to file a Rule 462(bno such amendment or supplement to which the Representative shall reasonably object in writing.
(h) Registration Statement after The Company shall advise the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) Underwriters promptly of the happening occurrence of any event or development known to the Company within the time during which a Prospectus relating to the period Shares (or in lieu thereof the notice referred to in Section 5(dRule 173(a) below which makes under the Securities Act) is required to be delivered under the Securities Act which, in the judgment of the Company, (i) would require the making of any change in the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions omit to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are state a material fact required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement stated therein or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or if, would conflict with the information contained in the opinion of counsel for Registration Statement relating to the UnderwritersShares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with applicable lawany law and, forthwith during such time, to promptly prepare and file furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the statements in Prospectus or the Prospectus, Disclosure Package as so amended or supplementedsupplemented will not, will not in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is so delivered, be misleadingmisleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with applicable the law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(fi) Prior The Company shall file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the reasonable judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation and filing of the Registration Statement, the Preliminary Prospectus and the Prospectus, any Issuer Free Writing Prospectus and each amendment or supplement to any public of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Prospectus, Issuer Free Writing Prospectus and the Registration Statement and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares to the Underwriters; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares, to cooperate with you ; (v) any expenses and counsel fees for the Underwriters at the expense cost of the Sellers in connection with the ratings agencies; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification and the preparation of the blue sky memorandum); (vii) any filings required to be made with the Commission and FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) all “road show” costs and expenses for the offering (regardless of the form in which the “road show” is conducted), and all costs of the Company and Underwriters’ personnel, including but not limited to, commercial or charter air travel, local hotel accommodations, transportation and other expenses; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the costs and expenses of causing the Shares to be eligible for clearance and settlement through DTC; (xi) reasonable and documented out-of-pocket, accountable, bona fide expenses incurred by the several Underwriters in connection with its services under this Agreement, whether or not the offering is consummated, including any fees and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution disbursements of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualificationUnderwriters’ legal counsel; provided, however, provided that the Company shall not be required to reimburse the fees and disbursements of such legal counsel in connection therewith excess of $125,000; provided further that the Company shall not be required to register or qualify as a foreign corporation reimburse any fees and expenses in any jurisdiction excess of $150,000 in which it is not now so qualified or to take any action that would subject it to general consent to service the aggregate; (xii) the costs and expenses of process or taxation background investigations; and (xii) all other than as to matters costs and transactions relating expenses incident to the Prospectus, performance by the Company of its obligations hereunder.
(k) Prior to filing with the Commission any amendment or supplement to the Registration Statement, any preliminary prospectus Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, during the offering time when a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, the Company shall furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent shall not be unreasonably withheld or delayed) to the filing.
(l) During the period referred to in paragraph (h) above, the Company shall file all such documents in the manner and within the time periods required by the Exchange Act.
(m) The Company shall apply the net proceeds of the sale of the SharesShares in accordance with its statements under the caption “Use of Proceeds” in the Registration Statement, in any jurisdiction in which it is not now so subjectthe Prospectus and the Disclosure Package.
(gn) To mail and The Company shall make generally available to its stockholders security holders as soon as practicable practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act, and to advise you in writing when such statement has been so made available) covering a period of 12 months beginning after the effective date of the Registration Statement.
(ho) During the For a period of three years 90 days after the date of this Agreementthe Prospectus, the Company will not (i) offer, pledge, sell, contract to furnish sell, sell any option or contract to you upon your written request copies of all reports purchase, purchase any option or other communications furnished contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, or file with the record holders Commission a registration statement under the Securities Act relating to, any shares of Common Stock or furnished any securities convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filed with filing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the Commission economic consequences of ownership of the Common Stock or any national securities exchange on which such other securities, whether any class such transaction described in clause (i) or (ii) above is to be settled by delivery of securities Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Underwriter, other than (1) the Shares to be sold hereunder, (2) any shares of Common Stock of the Company is listed awarded, issued upon the exercise of options or purchase rights, issued upon vesting of equity awards and/or settlement of other awards granted under the Company’s equity incentive plans, (3) the grant of stock options, restricted stock awards, restrictive stock units or any other awards under the Company’s equity incentive plans, (4) the filing by the Company of registration statements on Form S-8 with respect to benefit plans described in the Registration Statement, the Disclosure Package and such other publicly available information concerning the Prospectus, (5) the issuance of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding as of the date hereof and (6) the issuance of restricted stock units and/or pre-funded warrants exercisable for Common Stock pursuant to that certain Confidential Vendor Exclusivity Agreement, dated as of June 9, 2021, by and between the Company and its subsidiaries Invicta Watch Company of America, Inc. and that certain Confidential Vendor Exclusivity Agreement, dated as you may reasonably requestof June 9, 2021, by and between the Company and Famjams Trading LLC.
(ip) To use its best efforts The Company will not take, directly or indirectly, without giving effect to list for quotation activities by the Shares on Underwriter, as to which the Nasdaq National Market and Company makes no representation, any action designed to maintain the listing or that would reasonably be expected to cause or result in any stabilization or manipulation of the Shares on price of the Nasdaq National Market for a period of three years after the date of this AgreementCommon Stock.
(jq) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the The Company prior is not and, after giving effect to the Closing Date or any Option Closing Date, as the case may be, offering and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all sale of the Shares, to file a Rule 462(b) Registration Statement with will not be an “investment company” as such terms are defined in the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M.Investment Company Act of 1940, New York City time, on the date of this Agreementas amended.
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach of the Underwriters as follows:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements The Company will prepare a supplement to the Prospectus or for additional information, (ii) setting forth the amount of the issuance by Notes covered thereby and the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale terms thereof not otherwise specified in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and substance of which shall be satisfactory to youreallowances, if any, and to file such other information as the Prospectus Underwriters and the Company deem appropriate in such form connection with the Commission within offering of the applicable period specified in Notes, and the Company will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act; during , but the period specified in Section 5(d) below, Company will not to file any further amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus, unless it shall first have delivered copies of such amendments or supplements to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall have reasonably objected thereto promptly after receipt thereof; the Company will immediately advise the Underwriters or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement has become or will become effective and not (ii) of any order or communication suspending or preventing, or threatening to make suspend or prevent, the offer and sale of the Notes or of any amendment proceedings or supplement examinations that may lead to such an order or communication, whether by or of the Prospectus of which you shall not previously have been advised SEC or to which you shall reasonably object after being so advised; providedany authority administering any state securities or Blue Sky law, that as soon as the Company shall have is advised thereof, and will use its best efforts to prevent the right to make such further amendments as are required by law to be made and shall forthwith notify you issuance of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement order or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, communication and to use obtain as soon as possible its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivelifting, if issued.
(db) Prior If, at any time when the Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Notes is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of under the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)Act, any event shall occur or condition shall exist occurs as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Act or the Rules and Regulations, forthwith to the Company promptly will notify the Representative of such event and will promptly prepare and file with the Commission SEC, at its own expense, an appropriate amendment or supplement to such Prospectus that will correct such statement or omission or an amendment that will effect such compliance. Neither the Prospectus so that Representative's consent to, nor the statements Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Prospectus, and all amendments and supplements to such documents relating to the Notes, in each case in such quantities as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer Underwriters may reasonably request in writingrequest.
(e) [Intentionally omitted].
(f) Prior to any public offering of the Shares, to The Company will cooperate with you and counsel for the Underwriters at the expense of the Sellers and with their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration qualification or qualificationexemptions; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the SharesNotes, in any jurisdiction in which where it is not now so subject.
(g) The Company consents to the use, in accordance with the securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and by dealers, of the Prospectus furnished by the Company.
(h) To mail the extent, if any, that the rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of documents or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Representative terminating this Agreement pursuant to Section 8 or Section 9 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be applied substantially in accordance with the description set forth in the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the retirement of the Notes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the ▇▇▇▇t Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust St▇▇▇▇t Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents
(o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company.
(p) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders as soon as practicable securityholders an earnings statement covering a period of at least 12 months beginning after the twelvelater of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-month period ending December 31effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, 2000 that shall which will satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Receivables I Inc)
Agreements of the Company. The Company agrees with each of you:: -------------------------
(a) To file the Prospectus, which shall be in a form reasonably satisfactory to you, with the Commission within the time periods specified by Rule 424; and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and to furnish copies of the Prospectus to the Underwriters in New York City prior to 5:00 p.m., New York City time, on the Business Day next succeeding the date of this Agreement in such quantities as the Underwriters may reasonably request.
(b) During the period referred to in paragraph (e) below, to advise you promptly and, if requested by you, to confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement has been filed or becomes effective after the date of this Agreement, (ii) when any supplement to the Prospectus or any amended Prospectus has been filed, (iii) of any request by the Commission for amendments amend- ments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If During the period referred to in paragraph (e) below, the Company will use its reasonable best efforts to prevent the issuance of any stop order by the Commission, and if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To furnish to you five photocopies of one signed copy and three conformed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits thereto and documents incorporated by reference therein, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits thereto but including the documents incorporated by reference therein, as you may reasonably request.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during During the period specified in Section 5(dparagraph (e) below, not to file any further amendment or supplement to the Registration Statement and not Statement, whether before or after the time when it becomes effective, or to make any amendment or supplement to the Prospectus of which you shall not previously have been advised and given the opportunity to review, or to which you shall reasonably object after being so advisedobject; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares Securities by you, and and, if applicable, to use its reasonable best efforts to cause any such amendment to the Registration Statement same to become promptly effective.
(de) Prior to 10:00 A.M., New York City time, on the first business day Promptly after the date of this Agreement Registration Statement becomes effective, and from time to time thereafter for such period as in the opinion of counsel for the Underwriters Under writers a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(ef) If during the period specified in Section 5(d)paragraph (e) above, any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to amend or supplement the Prospectus to comply with applicable any law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer such dealers as many you shall specify, such number of copies thereof as such Underwriter or dealer dealers may reasonably request in writingrequest.
(fg) Prior to any public offering of the SharesSecurities, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares Securities and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(gh) To mail and make generally available to its stockholders securityholders and to the Underwriters as soon as reasonably practicable an earnings statement covering a period of at least twelve months beginning with the twelve-month period ending December 31first fiscal quarter of the Company occurring after the effective date of the Registration Statement, 2000 that which shall satisfy the provisions of Section 11(a) of the ActSecurities Act and Rule 158 of the Commission promulgated thereunder, and to advise you in writing when such statement has been so made available.
(hi) During the period of three years after beginning on the date hereof and continuing to and including the Business Day following the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of or guaranteed by the Company which are substantially similar to the Securities.
(j) To use the net proceeds received by the Company from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to the performance of its obligations hereunder (excluding, without limitation, fees and disbursements of counsel for the Underwriters other than pursuant to clauses (iv) and (v) below), including without limiting the generality of the foregoing, all costs and expenses incident to (i) the preparation, issuance, and delivery of the certificates for the Securities, including any expenses of the Trustee (ii) the preparation, printing, filing and distribution under the Securities Act of the Registration Statement (including financial statements and exhibits), each preliminary prospectus and all amendments and supplements to any of them prior to or during the period specified in paragraph (e) above, (iii) the printing and delivery of the Prospectus and any preliminary prospectus and all amendments or supplements to it during the period specified in paragraph (e) above, (iv) the printing (including word processing and duplication costs) and delivery of this Agreement, the Indenture, Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to furnish such printing and delivery of the Blue Sky Memorandum), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to you upon your written request such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the National Association of Securities Dealers, Inc. in connection with the offering, (vii) furnishing such copies of the Registration Statement, the Prospectus and all reports or other communications furnished to the record holders of Common Stock or furnished to or filed amendments and supplements thereto as may be requested for use in connection with the Commission offering or any national securities exchange on which any class of securities sale of the Company is listed Securities by the Underwriters or by dealers to whom Securities may be sold, and such other publicly available information concerning (viii) the Company and its subsidiaries as you may reasonably requestrating of the Securities including, without limitation, fees payable to rating agencies in connection therewith.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jl) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesSecurities.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company agrees with youyou as follows:
(a) To The Company shall use its best efforts to cause the Registration Statement and any amendments to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act") before termination of the offering of the Shares by you of which you and your counsel shall not previously have been advised and furnished with a copy, or to which you or your counsel shall have objected (except if deemed necessary by counsel for the Company, in which case you shall have the right to terminate this Agreement upon prompt notice to the Company), or which is not in compliance with the Act, the Exchange Act, or the Rules and Regulations. As soon as the Company is advised or obtains knowledge thereof, the Company will advise you promptly and, if requested by you, to and as soon as practicable, confirm such advice in writing, (i) when the Registration Statement, as amended, becomes effective and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any request by the Commission for amendments post-effective amendment to the Registration Statement or amendments or supplements to the Prospectus or for additional informationbecomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of the any Shares for offering or sale in any jurisdictionjurisdiction or of the initiation, or the initiation threatening, of any proceeding for such purposesthat purpose, (iiiiv) when of the receipt of any comments from the Commission, and (v) of any request by the Commission for any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you or for additional information. If the Commission or any state securities commission shall not previously have been advised enter a stop order or to which you shall reasonably object after being so advised; providedsuspend such qualification at any time, that the Company shall have will make every effort to obtain promptly the right lifting of such order or suspension.
(b) The Company will furnish to make such further amendments as are required by law you, without charge, three signed copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and all exhibits.
(c) The Company will give you advance notice of its intention to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus, and will not file any such amendment or supplement to which you shall reasonably object in writing or which is not in compliance with the Act.
(d) From the date hereof, and thereafter from time to time, the Company will deliver to you, without charge, as such Underwriter many copies of the Prospectus, or dealer any amendment or supplement thereto as you may reasonably request.
(e) . The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required to be delivered under the Act in connection therewith. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, which in the opinion reasonable judgment of the Company or your counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment or supplement thereto and will deliver to the Prospectus so that the statements in the Prospectusyou, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer you may reasonably request in writingrequest.
(fe) Prior to any public offering of the SharesShares by you, to the Company will cooperate with you and your counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky blue sky laws of such jurisdictions as you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Shares under such securities or blue sky laws and in connection with the determination of the eligibility of the Shares for investments under the laws of such jurisdictions as you may requestdesignate, to continue such registration including the reasonable expenses of any opinion of local counsel required by any state securities or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the blue sky authorities.
(f) The Company shall not be required will pay all expenses in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service with (1) the preparation, printing and filing of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, each preliminary prospectus, the Prospectus, any legal investment memoranda and the blue sky Survey, (2) the issuance and delivery of the Shares (other than transfer taxes),(3) the rating of the Shares by rating agencies, (4) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus or prospectus, all amendments and supplements thereto, as may reasonably be requested for use in connection with the offering or and sale of the SharesShares by you or by dealers to whom Shares may be sold, in any jurisdiction in which it is not now so subjectand (5) filings with the "NASD".
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering The Company will use the twelve-month period ending December 31, 2000 that shall satisfy net proceeds from the provisions of Section 11(a) sale of the Act, and to advise you Shares in writing when such statement has been so made availablethe manner specified in the Prospectus under the caption "Use of Proceeds."
(h) During The Company will appoint and retain, while any of the period Shares remain outstanding, a transfer agent for the Shares, and, if necessary, a registrar for the Shares (who may be the transfer agent), and will make arrangements to have available at the offices of three years after the transfer agent certificates for the Shares in such quantities as may, from time to time, be necessary. As of the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with transfer agent for the Commission or any national securities exchange on which any class of securities Shares of the Company is listed Oxford Transfer and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestRegistrar, 317 S.W. Alder, #1120, Portland, OR 97204.
(i▇) To use ▇▇▇ ▇▇mpany shall utilize its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain obtain the listing of the Shares on the Nasdaq National NASDAQ Small Cap Market for a period of three years after the date of this Agreementsystem.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by Neither the Company prior to the Closing Date or nor any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
Subsidiaries nor any of their respective executive officers, directors, principal stockholders or affiliates (k) If within the Registration Statement at the time meaning of the effectiveness of this Agreement does not cover all Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the Shares, to file a Rule 462(b) Registration Statement with price of any Shares of the Commission registering Company in violation of the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementExchange Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To The Company will use commercially reasonable efforts to cause the Registration Statement to become effective and will advise you promptly and, if requested by you, to will confirm such advice in writingwriting (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (iii) if Rule 430A under the Act is employed, when the Prospectus or term sheet (as described in Rule 434(b) under the Act) has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation (or threatened initiation) of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during within the period of time referred to in Section 5(d5(e) below which below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or which that requires the making of any additions to thereto or changes in the Registration Statement or the Prospectus therein in order to make the statements therein not misleadingmisleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its commercially reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To The Company will furnish to you five photocopies of you, without charge, three signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits thereto, and to will also furnish to you and each Underwriter designated by you you, without charge, such number of conformed copies of the Registration Statement as so originally filed and of each amendment to it, without exhibits, thereto as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus of which you shall not previously have been advised (with a reasonable opportunity to review such amendment or supplement) or to which you shall have reasonably object objected after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M.the execution and delivery of this Agreement, New York City timethe Company has delivered or will deliver to you, on without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the first business day after Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this Agreement as is reasonably practicable and thereafter from time to time thereafter for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a dealer, to furnish in New York City the Company will deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer they may reasonably request.
. The Company consents to the use of the Prospectus (eand of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable the Act or any other law, the Company will forthwith to prepare and file with the Commission an appropriate supplement or amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable lawthereto, and to will furnish to each Underwriter and to any each dealer as many who has previously requested Prospectuses, without charge, reasonable number of copies thereof as such Underwriter or dealer may reasonably request in writingthereof.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be reasonably necessary in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified qualified, to subject itself to taxation as a result of doing business in any jurisdiction where it is not now so subject to taxation, to qualify as a dealer in securities in any jurisdiction or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(g) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a period of at least twelve-months commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made availableRule 158 promulgated thereunder.
(h) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies as soon as practicable after the end of all reports each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to you (i) as soon as available, a copy of each report or other communications furnished to definitive proxy statement of the record holders of Common Stock or furnished to or Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any national securities exchange on which any class of securities of the Company is listed mailed to shareholders, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (other than as a result of a failure by the Representatives or any Underwriter to fulfill their or its best efforts to list for quotation obligations hereunder) or if this Agreement shall be terminated by the Shares Underwriters because of any failure or refusal on the Nasdaq National Market and to maintain the listing part of the Shares on Company to comply with the Nasdaq National Market for a period terms or fulfill any of three years after the date conditions of this Agreement, the Company agrees to reimburse the Representatives for all out- of-pocket expenses (including fees and expenses of counsel for the Underwriters but excluding wages and salaries paid by the Representatives) reasonably incurred by you in connection herewith.
(j) To use its reasonable best efforts to do and perform all things required or necessary The Company will apply the net proceeds from the sale of the Shares to be done sold by it hereunder substantially in accordance with the description set forth in the Prospectus under the caption "Use of Proceeds."
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) The Company will not offer, sell, contract to sell or otherwise dispose of any Common Stock or rights to purchase Common Stock, or any securities convertible into or exercisable or exchangeable for shares of Common Stock except to the Underwriters pursuant to this Agreement, for a period of 180 days from the date of the Prospectus without the prior written consent of the Representatives; provided, however, that the Company may issue shares of Common Stock pursuant to the Combination Transactions (as defined in the Prospectus), pursuant to the Company's Long-Term Incentive Plan, and performed under this Agreement other employee benefit and compensation arrangements currently in effect or as consideration to sellers in connection with business acquisitions by the Company, but only if such sellers agree in writing not to offer, sell, contract to sell or otherwise dispose of such shares of Common Stock for a period of 180 days from the date of the Prospectus.
(m) The Company prior to the Closing Date will not, directly or indirectly, take any action which would constitute, or any Option Closing Dateaction designed or which might reasonably be expected to cause or result in or constitute, as under Act or otherwise, stabilization or manipulation of the case may be, and price of any security of the Company to satisfy all conditions precedent to facilitate the delivery sale or resale of the Shares.
(kn) If at any time during the Registration Statement at 25-day period after the time first date that any of the effectiveness Shares are released by you for sale to the public, any publication or event relating to or affecting the Company shall occur as a result of this Agreement does not cover all which in your opinion the market price of the Common Stock (including the Shares) has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to file or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith consult with you concerning the advisability and substance of, and, if appropriate, disseminate, a Rule 462(bpress release or other public statement responding to or commenting on such publication or event.
(o) Registration Statement with The Company will maintain a transfer agent and, if necessary under the Commission registering jurisdiction of its incorporation or the Shares not so covered rules of the Nasdaq Stock Market or any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock.
(p) The Company agrees that any dispute hereunder shall be litigated solely in compliance with Rule 462(b) by 10:00 P.M.the Circuit Court of the State of Florida in Pinellas County, New York City timeFlorida or in the United States District Court for the Middle District of Florida, on Tampa Division, and further agrees to submit itself to the date personal jurisdiction of this Agreementsuch courts.
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach Underwriter:
(a) To The Company shall furnish such information as may be required and otherwise to cooperate in qualifying the Notes for offering and sale under (or otherwise obtaining exemptions from the application of) the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Notes; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Notes) where it is not presently qualified.
(b) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, the Company will use its reasonable best efforts to cause such post-effective amendment to become effective as soon as possible and will advise you the Representative promptly and, if requested by youthe Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) The Company shall prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 5:30 p.m. (New York City time), on September 27, 2021 or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 5:30 p.m. New York City time) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree to the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version transmitted to the Commission for filing via E▇▇▇▇, except to the extent permitted by Regulation S-T of the Securities Act.
(d) The Company shall file the Final Term Sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any case not later than the time required by such rule.
(e) The Company shall advise the Representative promptly and (if requested by the Representative) to confirm such advice in writing, (i) of when any request by the Commission for amendments post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(f) The Company shall furnish a copy of each proposed Issuer Free Writing Prospectus, if any, to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent will not be unreasonably withheld or delayed) prior to referring to, using or filing with the Commission any Issuer Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto and the Final Term Sheet.
(g) The Company shall comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable.
(h) The Company shall advise the Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional informationinformation with respect thereto, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposespurposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) when any amendment examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement becomes effectiveStatement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Notes contemplated herein, and shall advise the Representative promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, during the time when a Prospectus relating to the Notes (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, to file a Rule 462(bno such amendment or supplement to which the Representative shall reasonably object in writing.
(i) Registration Statement after The Company shall advise the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) Underwriters promptly of the happening occurrence of any event or development known to the Company within the time during which a Prospectus relating to the period Notes (or in lieu thereof the notice referred to in Section 5(dRule 173(a) below which makes under the Securities Act) is required to be delivered under the Securities Act which, in the judgment of the Company, (i) would require the making of any change in the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions omit to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are state a material fact required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement stated therein or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or if, would conflict with the information contained in the opinion of counsel for Registration Statement relating to the UnderwritersNotes, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with applicable lawany law and, forthwith during such time, to promptly prepare and file furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the statements in Prospectus or the Prospectus, Disclosure Package as so amended or supplementedsupplemented will not, will not in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is so delivered, be misleadingmisleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with applicable the law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(fj) The Company shall file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the reasonable judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation and filing of the Registration Statement, the Preliminary Prospectus and the Prospectus, any Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Prospectus, Issuer Free Writing Prospectus and the Registration Statement and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Notes; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Notes, including any stamp or transfer taxes in connection with the original issuance and sale of the Notes to the Underwriters; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (v) any expenses and fees for the cost of ratings agencies; (vi) any registration or qualification of the Notes for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable and documented fees and expenses of counsel for the Underwriters relating to such registration and qualification and the preparation of the blue sky memorandum); (vii) any filings required to be made with the Commission and FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) all “road show” costs and expenses for the offering (regardless of the form in which the “road show” is conducted), and all costs of the Company and Underwriters’ personnel, including but not limited to, commercial or charter air travel, local hotel accommodations, transportation and other expenses; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the costs and expenses of causing the Notes to be eligible for clearance and settlement through DTC; (xi) out-of-pocket, accountable, bona fide expenses actually incurred by the Representative in connection with this offering, including any fees and disbursements of legal counsel to the Underwriters, up to an aggregate amount not to exceed $175,000, in each case to the extent permitted by FINRA regulations; (xii) the costs and expenses of background investigations; (xiii) a structuring fee to be paid to the Representative at the Closing Date in an amount equal to 1.0% of the gross proceeds of this offering ; (xiv) a backstop fee to be paid to the Representative at the Closing Date in an amount equal to $1.6 million, (or 2.0% of $80 million); and (xv) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(l) Prior to filing with the Commission any public offering of amendment or supplement to the SharesRegistration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, during the time when a Prospectus relating to cooperate with you the Notes (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, the Company shall furnish a copy thereof to the Representative and counsel for the Underwriters at and obtain the expense consent of the Sellers Representative (which consent shall not be unreasonably withheld or delayed) to the filing.
(m) During the period referred to in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may requestparagraph (h) above, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be file all such documents in the manner and within the time periods required by the Exchange Act.
(n) The Company shall apply the net proceeds of the sale of the Notes in connection therewith to register or qualify as a foreign corporation accordance with its statements under the caption “Use of Proceeds” in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of Prospectus and the Shares, in any jurisdiction in which it is not now so subjectDisclosure Package.
(go) To mail and The Company shall make generally available to its stockholders security holders as soon as practicable practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act, and to advise you in writing when such statement has been so made available) covering a period of 12 months beginning after the effective date of the Registration Statement.
(hp) During The Company will not, without the period prior written consent of three years after the date Representative, offer, sell, contract to sell, pledge, or otherwise dispose of this Agreement(or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to furnish to you upon your written request copies cash settlement or otherwise) by the Company, directly or indirectly, including the filing (or participation in the filing) of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed a registration statement with the Commission in respect of, or any national securities exchange on which any class establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of securities Section 16 of the Company is listed Exchange Act) any senior unsecured notes (other than the Notes sold to the Underwriters pursuant to this Agreement) or publicly announce an intention to effect any such transaction for a period beginning on the date hereof and such other publicly available information concerning extending through the Company and its subsidiaries as you may reasonably request90th day hereafter.
(iq) To use its best efforts The Company will not take, directly or indirectly, without giving effect to list for quotation activities by the Shares on Underwriter, as to which the Nasdaq National Market and Company makes no representation, any action designed to maintain the listing or that would reasonably be expected to cause or result in any stabilization or manipulation of the Shares on price of the Nasdaq National Market for a period of three years after the date of this AgreementNotes.
(jr) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the The Company prior is not and, after giving effect to the Closing Date or any Option Closing Dateoffering and sale of the Notes, will not be an “investment company” as such terms are defined in the Investment Company Act of 1940, as the case may be, and to satisfy all conditions precedent to the delivery of the Sharesamended.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of four (4) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 beginning after the effective date of the Registration Statement that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholders hereunder for which provision is not otherwise made in this Section. The provisions of this Section shall not supersede or otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of such expenses among themselves.
j) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto or any Additional Registration Statement to be declared effective before the offering of the Notes may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares Notes for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below event, which makes any material statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters state a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.material fact
Appears in 1 contract
Sources: Underwriting Agreement (Olsten Corp)
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you the Underwriters promptly and, if requested by youthe Underwriters, to will confirm such advice in writing, when such post-effective amendment has become effective.
(ib) The Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing: of any request by the Commission for amendments amendment of or a supplement to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) ; of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposespurpose; and within the period of time referred to in paragraph (e) below, of any change in the Company's condition (iii) when any amendment to the Registration Statement becomes effectivefinancial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time within the time period referred to in paragraph (e) the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of signed copies of the Registration Statement as first filed with Underwriters, without charge and upon the Commission and of each amendment to itUnderwriters' request, including all exhibits, and to furnish to you and each Underwriter designated by you (i) such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as the Underwriters may reasonably request, (ii) such number of copies of the Incorporated Documents, without exhibits, as you the Underwriters may reasonably request, and (iii) one copy of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (e) below, file any document which upon filing, becomes an Incorporated Document, of which you the Underwriters shall not previously have been advised or to which you which, after the Underwriters shall have received a copy of the document proposed to be filed, the Underwriters shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectiveobject.
(de) Prior to 10:00 A.M., New York City time, on the first business day As soon after the date execution and delivery of this Agreement as possible and thereafter from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a any dealer, to furnish in New York City the Company will expeditiously deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer the Underwriters may reasonably request.
. Subject to the provisions of subsection (ef) below, the Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws or real estate syndication laws of the jurisdictions in the United States in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or supplement to such document), and will expeditiously furnish to the Prospectus so Underwriters and dealers a reasonable number of copies thereof. In the event that the statements in Company and the Prospectus, as so Underwriters agree that the Prospectus should be amended or supplemented, the Company, if requested by the Underwriters, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you the Underwriters and with counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws or real estate syndication laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail and The Company will make generally available to its stockholders as soon as practicable an security holders a consolidated earnings statement covering the twelve-month period ending December 31statement, 2000 that which need not be audited, which shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years The Company will furnish to its shareholders, as soon as practicable after the date end of this Agreementeach respective fiscal year, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestan annual report (including financial statements audited by independent public accountants).
(i) To use its best efforts to list for quotation If this Agreement shall terminate or shall be terminated after execution by the Shares Underwriters because of any failure or refusal on the Nasdaq National Market and to maintain the listing part of the Shares on Company to comply with the Nasdaq National Market terms or fulfill any of the conditions of this Agreement to be complied with or fulfilled by the Company, the Company agrees to reimburse the Underwriters for a period all reasonable out-of-pocket expenses (including fees and expenses of three years after counsel) incurred by the date of Underwriters in connection with this Agreement.
(j) To use its reasonable best efforts The Company will apply the net proceeds from the sale of the Shares substantially in accordance with the description set forth under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will timely file the Prospectus pursuant to do Rule 424(b) under the Act and perform all things required will advise the Underwriters or necessary to be done the Underwriters' counsel of the time and performed under manner of such filing.
(l) Except as stated in this Agreement by and in the Prospectus, the Company prior has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Closing Date price of the Common Stock to facilitate the sale or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery resale of the Shares.
(km) If The Company will use its best efforts to list the Registration Statement at Shares on the time NYSE.
(n) Subject to the determination by the Board of Directors of the effectiveness Company to the contrary, the Company will use its best efforts to meet the requirements to qualify as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the "Code") and to cause the Partnership to be treated as a partnership for federal income tax purposes.
(o) Except as provided in this Agreement does Agreement, the Company will not cover all offer, sell, contract to sell, pledge or otherwise dispose of the Shares, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or grant any options or warrants to file purchase Common Stock for a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on period of 30 days after the date of this Agreementthe Prospectus Supplement, without the prior written consent of Citigroup Global Markets Inc., except (i) for the issuance of Common Stock pursuant to the redemption of units of limited partnership interest in the Partnership ("Partnership Units") in accordance with the Third Amended and Restated Agreement of Limited Partnership of the Partnership, as amended and (ii) for options or Common Stock issued pursuant to stock option or stock purchase plans as described in the Prospectus or the Incorporated Documents.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of three (3) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company and its subsidiaries shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders shareholders as soon as practicable an earnings statement covering the twelve-month period ending December 31April 30, 2000 1999 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestrequest in writing.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Shareholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel (but not counsel's fees) for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, (ix) a nonaccountable expense allowance in the amount of $750,000 payable to DLJ upon the Closing Date, the payment of which will not require DLJ to provide any accounting therefor and (x) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Shareholders hereunder for which provision is not otherwise made in this Section. The provisions of this Section shall not supersede or otherwise affect any agreement that the Company and the Selling Shareholders may otherwise have for allocation of such expenses among themselves.
(j) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to use its best efforts to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with you------------------------- the several Underwriters that:
(a) To advise you promptly andThe Company will use its best efforts to cause the Registration Statement, if requested by younot effective at the Execution Time, and any amendment thereof, to confirm become effective. Prior to the termination of the offering of the Securities (which will be deemed to have occurred on the date that is the earlier of (i) 60 days after the Closing Date and (ii) the date on which the Representatives shall have informed the Company in writing that the offering of the Securities has terminated), the Company will not file any amendment of the Registration Statement, supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives a copy for their review prior to filing and will not file any such advice proposed amendment, supplement or Rule 462(b) Registration Statement to which the Representatives reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. Upon your request but not without our agreement, the Company will cause the Rule 462(b) Registration Statement, completed and in writingcompliance with the Securities Act and the applicable rules and regulations thereunder, to be filed with the Commission pursuant to Rule 462(b) and will provide evidence satisfactory to the Representatives of such filing. The Company will promptly advise the Representatives (A) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (iB) when the Prospectus, or any respective supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (C) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (D) of any request by the Commission for amendments to any amendment of the Registration Statement or amendments or supplements supplement to the Prospectus or for any additional information, (iiE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (F) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, jurisdiction or the initiation or threatening of any proceeding for such purposespurpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(iiib) If, at any time when any amendment a prospectus relating to the Registration Statement becomes effective, (iv) if the Company Securities is required to file a Rule 462(b) Registration Statement after be delivered under the effectiveness of this AgreementSecurities Act, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during occurs as a result of which the period referred to in Section 5(d) below which makes Prospectus as then supplemented would include any untrue statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires omit to state any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be material fact necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, misleading or if, in the opinion of counsel for the Underwriters, if it is shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with applicable lawthe Securities Act or the rules and regulations thereunder, forthwith to the Company shall promptly (i) prepare and file with the Commission Commission, subject to the second sentence of paragraph (a) of this Section 5, an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance and (ii) supply any supplemented Prospectus to the Prospectus so that the statements you in the Prospectus, such quantities as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer you may reasonably request in writingrequest.
(fc) Prior to any public offering of the SharesAs soon as practicable, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and will make generally available to its stockholders as soon as practicable security holders and to the Representatives an earnings statement covering or statements of the twelve-month period ending December 31, 2000 that shall Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(d) The Company will furnish to the U.S. Representative on behalf of the Representatives and to counsel for the Underwriters, without charge, a complete manually signed copy of the Registration Statement (including exhibits thereto) as originally filed and each amendment thereto, and to advise you each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) as originally filed and each amendment thereto; and so long as delivery of a prospectus by any Underwriter or dealer may be required by the Securities Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as either of the Representatives may reasonably request. The Company will pay the expenses of printing or other reproduction of all documents relating to the offering of the Securities.
(e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in writing when effect so long as required for the distribution of the Securities. The Company will pay the fee of the NASD in connection with its review of the offering and the reasonable fees of counsel for the Underwriters in connection therewith.
(f) The Company will not, for a period of 180 days following the Execution Time, without the prior written consent of the U.S. Representative, directly or indirectly, offer to sell, contract to sell, sell or otherwise dispose of, or announce the offering of, any other shares of Common Stock or any securities convertible into or exchangeable or exercisable for shares of Common Stock; provided, however, that the Company may issue (i) shares of Common Stock (and options therefor) under the stock option plans in effect at the Execution Time and described in the Prospectus under the caption "Management Stock Option Plans and Arrangements", (ii) shares of Common Stock upon exercise of warrants outstanding as of the Execution Time and (iii) shares of Common Stock upon conversion of the Company's Series A Secured Subordinated Convertible Promissory Notes. In addition, the Company shall cause each of the persons listed as directors or executive officers of the Company under the caption "Management" in the Prospectus and all other holders of Common Stock and securities convertible into or exchangeable for shares of Common Stock as of the date hereof to execute, at the Execution Time, a letter in form acceptable to the U.S. Representative (each, a "Lock-Up Letter"), wherein such statement has been so made availableperson agrees that for a period of 180 days following the Execution Time, without the prior written consent of the U.S. Representative, he or she shall not, directly or indirectly, offer to sell, contract to sell, sell or otherwise dispose of, or announce the offering of, any shares of Common Stock or any securities convertible into or exchangeable or exercisable for shares of Common Stock (and upon Execution Time the Company shall instruct its Registrar and Transfer Agent to not effect any such restricted transfer).
(g) The Company shall apply the net proceeds from the sale of Securities as set forth in the Prospectus.
(h) The Company shall take all steps as shall be necessary to ensure that neither the Company nor any Subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder.
(i) The Company confirms as of the date hereof that it is in compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the Company further agrees that if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date the Registration Statement becomes or has become effective with the Commission or with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information reported in the Prospectus, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Department notice of such business or change, if then required by Florida law and as appropriate, in a form acceptable to the Department.
(j) During the a period of three years after from the date of this AgreementEffective Date, to the Company shall furnish to you upon your written request the Representatives copies of all reports or other communications (financial or other) furnished to shareholders, provided that the record holders of Common Stock or furnished foregoing shall not obligate the Company to or filed with the Commission furnish projections or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Sharesforward-looking information.
(k) If Until such time as the Registration Statement at Company's independent public accountants provide it with a letter stating that there are no material weaknesses with respect to the time of the effectiveness of this Agreement does not cover Company's internal control structure or its operation, all of the SharesCompany's consolidated financial statements for all annual, quarterly or other interim periods shall be audited by independent public accountants, and no public release of any financial information related to file a Rule 462(b) Registration Statement with any such consolidated financial statements shall occur prior to the Commission registering completion of the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date audit of this Agreementsuch consolidated financial statements.
Appears in 1 contract
Sources: Underwriting Agreement (Netsource Communications Inc)
Agreements of the Company. The Company agrees with youthe several ------------------------- Managers as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or amendments or supplements to the Prospectus Prospectuses or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during event, including the period referred filing of any information, documents or reports pursuant to in Section 5(d) below which the Exchange Act, that makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge (i) four signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits to the Registration Statement, and to furnish to you and each Underwriter designated by you (ii) such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably requestrequest and (iv) four copies of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus Prospectuses or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing, becomes an Incorporated Document, of which you shall not previously have been advised or to which which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectiveobject.
(de) Prior to 10:00 A.M.the execution and delivery of this Agreement, New York City timethe Company has delivered or will deliver to you, on without charge, in such quantities as you have requested or may hereafter request, copies of each form of the first business day after International Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Managers and by dealers, prior to the date of the International Prospectus, of each International Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Managers an International Prospectus is required by law the Act to be delivered in connection with sales by an Underwriter any Manager or a dealer, to furnish in New York City the Company will expeditiously deliver to each Underwriter Manager and any dealer each dealer, without charge, as many copies of the International Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the Prospectususe of the International Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as such Underwriter the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer may reasonably request.
(e) dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Managers is required to amend be set forth in the International Prospectus (as then amended or supplement the Prospectus supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend the International Prospectus (or supplement to file under the Prospectus Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or supplement to such document), and will expeditiously furnish to the Prospectus so Managers and dealers a reasonable number of copies thereof. In the event that the statements in the ProspectusCompany and you, as so Lead Managers for the several Managers, agree that the International Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers Managers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters Managers and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(all(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed NYSE, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Managers because of any failure or refusal on the part of the Company or any of the Selling Stockholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Lead Managers for all reasonable best efforts to do out-of-pocket expenses (including reasonable fees and perform all things required or necessary expenses of counsel for the Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be done sold by it hereunder substantially in accordance with the description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectuses pursuant to Rule 424(b) under the Act and performed under will advise you of the time and manner of such filing.
(m) Except as provided in this Agreement by and the U.S. Underwriting Agreement, the Company prior will not offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock, except for sales to the Closing Date or any Option Closing Date, as the case may be, Managers pursuant to this Agreement and to satisfy all conditions precedent the U.S. Underwriters pursuant to the delivery U.S. Underwriting Agreement for a period of 60 days after the date of the Prospectuses, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(n) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed, by each of its current officers and directors and each of its stockholders listed in Schedule III.
(o) Except as stated in this Agreement and in the U.S. Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(kp) If The Company will use its best efforts to have the Registration Statement at the time shares of the effectiveness of Common Stock which it agrees to sell under this Agreement does not cover all listed, subject to notice of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City timeissuance, on the date of this AgreementNew York Stock Exchange on or before the Closing Date.
Appears in 1 contract
Sources: International Underwriting Agreement (Nova Corp \Ga\)
Agreements of the Company. The Company agrees with you:you as follows: --------------------------
(a) To The Company shall use its best efforts to cause the Registration Statement and any amendments to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act") before termination of the offering of the Securities by you of which you and your counsel shall not previously have been advised and furnished with a copy, or to which you or your counsel shall have objected (except if deemed necessary by counsel for the Company, in which case you shall have the right to terminate this Agreement upon prompt notice to the Company), or which is not in compliance with the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the Rules and Regulations. As soon as the Company is advised or obtains knowledge thereof, the Company will advise you promptly and, if requested by you, to and as soon as practicable, confirm such advice in writing, (i) when the Registration Statement, as amended, becomes effective and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any request by the Commission for amendments post- effective amendment to the Registration Statement or amendments or supplements to the Prospectus or for additional informationbecomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of the Shares any Securities for offering or sale in any jurisdictionjurisdiction or of the initiation, or the initiation threatening, of any proceeding for such purposesthat purpose, (iiiiv) when of the receipt of any comments from the Commission, and (v) of any request by the Commission for any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you or for additional information. If the Commission or any state securities commission shall not previously have been advised enter a stop order or to which you shall reasonably object after being so advised; providedsuspend such qualification at any time, that the Company shall have will make every effort to obtain promptly the right lifting of such order or suspension.
(b) The Company will furnish to make such further amendments as are required by law you, without charge, three signed copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and all exhibits.
(c) The Company will give you advance notice of its intention to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus, and will not file any such amendment or supplement to which you shall reasonably object in writing or which is not in compliance with the Act.
(d) From the date hereof, and thereafter from time to time, the Company will deliver to you, without charge, as such Underwriter many copies of the Prospectus, or dealer any amendment or supplement thereto as you may reasonably request.
(e) . The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and for such period of time thereafter as the Prospectus is required to be delivered under the Act in connection therewith. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, which in the opinion reasonable judgment of the Company or your counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment or supplement thereto and will deliver to the Prospectus so that the statements in the Prospectusyou, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer you may reasonably request in writingrequest.
(fe) Prior to any public offering of the SharesSecurities by you, to the Company will cooperate with you and your counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Securities under such securities or Blue Sky laws and in connection with the determination of the eligibility of the Securities for investments under the laws of such jurisdictions as you may designate, including the reasonable expenses of any opinion of local counsel required by any state securities or Blue Sky authorities.
(f) So long as any of the Securities remain outstanding, the Company will furnish to its securityholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants), and will deliver to you, as representative for the underwriters:
(i) concurrently with furnishing such quarterly reports to its securityholders, statements of income of the Company for each quarter in the form furnished to the Company's securityholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its securityholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any state securities commission, NASDAQ/SCMS, the NASD or any securities exchange;
(v) every press release and every material news item regarding each of the Company and the Subsidiaries or their respective affairs which were released or prepared by or on behalf of the Company or any of the Subsidiaries; and
(vi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiaries) or their respective businesses which you may request. During such period, if the Company has active subsidiaries, the foregoing financial statements will be on a consolidated basis to continue such registration or qualification in effect so long as required for distribution the extent that the accounts of the Shares Company and to file such consents to service of process or other documents as may its subsidiaries are consolidated, and will be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in accompanied by similar financial statements for any jurisdiction in significant subsidiary which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subjectconsolidated.
(g) To mail The Company will pay all expenses in connection with (1) the preparation, printing and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) filing of the ActRegistration Statement, each preliminary prospectus, the Prospectus, any legal investment memoranda and the Blue Sky Survey, (2) the issuance and delivery of the Securities (other than transfer taxes), (3) the rating of the Securities by rating agencies, (4) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, all amendments and supplements thereto, as may reasonably be requested for use in connection with the offering and sale of the Securities by you or by dealers to whom Securities may be sold, and to advise you in writing when such statement has been so made available(5) filings with the National Association of Securities Dealers, Inc. ("NASD").
(h) During The Company will use the period net proceeds from the sale of three years after the Securities in the manner specified in the Prospectus under the caption "Use of Proceeds." No portion of the net proceeds will be used, directly or indirectly, to acquire or redeem any securities issued by the Company.
(i) The Company will appoint and retain, while any of the Securities remain outstanding, a transfer agent for the Securities, and, if necessary, a registrar for the Securities (who may be the transfer agent), and will make arrangements to have available at the offices of the transfer agent certificates for the Securities in such quantities as may, from time to time, be necessary. As of the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with transfer agent for the Commission or any national securities exchange on which any class of securities of the Company is listed American Securities Transfer and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestTrust Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 1825, Denver, CO 80202.
(ij) To For a period of five years from the date hereof, the Company shall use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares its common stock on the Nasdaq National Market for a period Association of three years after the date of this Agreement.
Securities Dealers, Inc. (j"NASD") To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Sharesover-the-counter market.
(k) If Neither the Registration Statement at the time Company nor any of the effectiveness Subsidiaries nor any of this Agreement does not cover all their respective executive officers, directors, principal stockholders or affiliates (within the meaning of the SharesRules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to file a Rule 462(bcause or result in, stabilization or manipulation of the price of any securities of the Company in violation of the Exchange Act.
(l) Registration Statement Until the completion of the distribution of the Securities, neither the Company nor any of the Subsidiaries shall, without prior written consent of you and your counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Commission registering Company, any of the Shares not so covered Subsidiaries, their respective activities or the offering contemplated hereby, other than trade releases issued in compliance the ordinary course of the Company's business consistent with Rule 462(b) by 10:00 P.M., New York City time, on past practices with respect to the date of this AgreementCompany's operations. 5.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Placement Agent as follows:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of the Placement Agent (which approval shall not be unreasonably withheld or delayed), pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Placement Agent promptly andfollowing such filing.
(b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Offered Securities by an underwriter, a dealer or a placement agent in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to the Placement Agent within a reasonable period of time prior to the filing thereof and the Placement Agent shall not have reasonably objected thereto in good faith.
(c) The Company will notify the Placement Agent promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or for additional information, but only during the period mentioned in Section 4(b); (ii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement or the use of any Preliminary Prospectus, the suspension of qualification of Base Prospectus, or the Shares for offering or sale in any jurisdictionProspectus, or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, but only during the period mentioned in Section 4(b); (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during the period referred to mentioned in Section 5(d4(b) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Offered Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Placement Agent promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when a Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Offered Securities is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Securities Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Placement Agent, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agent, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Securities Act or the Rules and Regulations, forthwith the Company will promptly notify the Placement Agent and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in Placement Agent, without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Placement Agent may reasonably request. The Company consents to the light use of the circumstances when it is so deliveredProspectus or any amendment or supplement thereto by the Placement Agent.
(e) To the extent not available on ▇▇▇▇▇, be misleadingthe Company will furnish to the Placement Agent and its counsel, or so that without charge (i) two conformed copies of the Prospectus will comply Registration Statement as originally filed with applicable lawthe Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, and (ii) so long as a prospectus relating to furnish the Offered Securities is required to each Underwriter and to any dealer be delivered under the Securities Act, as many copies thereof of the Prospectus or any amendment or supplement thereto as such Underwriter or dealer the Placement Agent may reasonably request in writingrequest.
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(g) Prior to any public offering the sale of the SharesOffered Securities to the Investors, to the Company will cooperate with you the Placement Agent and its counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Offered Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agent may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will not make generally available any offer relating to its stockholders as soon as practicable the Offered Securities that would constitute an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made availableIssuer Free Writing Prospectus.
(hi) During The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(j) The Company will use its best efforts to ensure that the Offered Securities are traded on the Nasdaq Global Market at the time of the Closing.
(k) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Offered Securities to facilitate the sale or resale of any of the Offered Securities.
(l) The Company will cause each of its executive officers and directors, whose names are set forth in Exhibit C hereto, to furnish to the Placement Agent, on or before the Closing Date, a letter dated the date hereof, substantially in the form of Exhibit D hereto (the “Lock-Up Agreement”). The Company will use its commercially reasonable efforts to enforce the terms of each Lock-Up Agreement and issue stop transfer instructions to the transfer agent for the shares with respect to any transaction or contemplated transaction that would constitute a breach or default under the applicable Lock-Up Agreement.
(m) For a period ending on the earlier of three years (i) 90 days after the date hereof or (ii) the termination of this Agreement by the Placement Agent prior to the Closing (other than as a result of any breach of this Section 4(m)) (the “Lock-Up Period”), the Company will not directly or indirectly, (1) offer to sell, hypothecate, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase (to the extent such option or contract to purchase is exercisable within one year from the Closing Date), purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or 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, with respect to, any shares of Common Stock, or any securities convertible into or exercisable or exchangeable for shares of Common Stock; (2) file or cause to become effective a registration statement under the Securities Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock or (3) 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 clauses (1), (2) or (3) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Placement Agent (which consent may be withheld in its sole discretion), other than (i) the Offered Securities to be sold hereunder, (ii) the issuance of employee stock options or shares of restricted stock pursuant to equity compensation plans described in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Materials and the Prospectus, (iii) issuances of shares of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Materials and the Prospectus or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement, to furnish to you upon your written request copies ; (iv) the issuance by the Company of all reports or other communications furnished to the record holders any shares of Common Stock or furnished to securities convertible or filed with the Commission or any national securities exchange on which any class exchangeable into shares of securities of the Company is listed and such Common Stock as consideration for mergers, acquisitions, other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.business
Appears in 1 contract
Agreements of the Company. The Company agrees with you:you as follows: -------------------------
(a) To In respect of the offering of Shares, the Company will prepare a Prospectus Supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Shares are being issued, the name of the Underwriter participating in the offering and the number of Shares which the Underwriter has agreed to purchase, the price at which the Shares are to be purchased by the Underwriter from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as the Underwriter and the Company deem appropriate in connection with the offering of the Shares. The Company will furnish to the Underwriter and to such dealers as you shall specify as many copies of the Prospectus as the Underwriter shall reasonably request for the purposes contemplated by the Act or the Exchange Act.
(b) At any time when the Prospectus is required to be delivered under the Act or the Exchange Act in connection with sales of Shares, the Company will advise you promptly and, if requested by you, to confirm such advice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus or other supplement or amendment to the Prospectus to be filed pursuant to the Act, (iii) the receipt of any comments from the Commission relating to the Registration Statement, any preliminary prospectus, the Prospectus or any of the transactions contemplated by this Agreement, (iv) any request by the Commission for post-effective amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (vvi) of the happening of any event during as a result of which the period referred to in Section 5(d) below which makes any Prospectus as then amended or supplemented would include an untrue statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires omit to state any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be material fact necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. The Company will make every reasonable effort to prevent the issuance of any stop order and if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(c) The Company will furnish to you without charge, one signed copy of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and furnish to you such number of conformed copies of the Registration Statement as so filed and of each amendment to it as you may reasonably request.
(d) At any time when the Prospectus is required to be delivered under the Act or the Exchange Act in connection with sales of Shares, not to file any amendment to the Registration Statement or any Rule 462(b) Registration Statement or to make any amendment or supplement to the Prospectus or any Term Sheet, if applicable, of which you shall not previously have been advised or to which you or counsel for the Underwriter shall reasonably object; and to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or ifamendment or supplement to the Prospectus which, in the opinion of counsel for the UnderwritersUnderwriter, may be necessary in connection with the distribution of the Shares by you, and to use its best efforts to cause the same to become promptly effective. The Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to the electronically transmitted copies thereof filed with the commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) If, at any time when the Prospectus is required to be delivered under the Act or the Exchange Act in connection with sales of Shares, any event shall occur as a result of which, in the opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable any law, the Company will forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriter) so that the statements in the Prospectus, as so amended or supplemented, will not contain 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 existing when it is so delivered, be not misleading, or so that the Prospectus will comply with applicable any law, and to furnish to each the Underwriter and to any dealer such dealers as many you shall specify, such number of copies thereof as such the Underwriter or dealer dealers may reasonably request in writingrequest.
(f) Prior to any public offering of The Company will use its best efforts, in cooperation with the SharesUnderwriter, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration qualify or qualification of register the Shares for offer and sale by the several Underwriters and by dealers Underwriter under the applicable state securities or Blue Sky laws and real estate syndication laws of such jurisdictions as you may reasonably request; provided, however, the Company will not be -------- ------- required to qualify as a foreign corporation, file a general consent to service of process in any such jurisdiction, subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject, or provide any undertaking or make any change in its charter or by-laws that the Board of Directors of the Company reasonably determines to be contrary to the best interests of the Company and its stockholders. In each jurisdiction in which the Shares have been so qualified or registered, the Company will use all reasonable efforts to file such statements and reports as may be required by the laws of such jurisdiction, to continue such qualification or registration or qualification in effect for so long a period as required the Underwriter may reasonably request for the distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration qualification or qualificationregistration; provided, however, that the Company shall will not -------- ------- be required in connection therewith to register or qualify as a foreign corporation corporation, file a general consent to service of process in any such jurisdiction, subject itself to taxation in respect of doing business in any jurisdiction in which it is not now otherwise so qualified subject, or provide any undertaking or make any change in its charter or by-laws that the Board of Directors of the Company reasonably determines to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating be contrary to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale best interests of the Shares, in any jurisdiction in which it is not now so subjectCompany and its stockholders.
(g) To mail and make generally available to its the Company's stockholders as soon as reasonably practicable but not later than sixty (60) days after the close of the period covered thereby (ninety (90) days in the event the close of such period is the close of the Company's fiscal year), an earnings statement (in form complying with the provisions of Rule 158 of the Act) covering a period of at least twelve months after the twelve-month period ending December 31, 2000 that effective date of the Registration Statement (but in no event commencing later than ninety (90) days after such date) which shall satisfy the provisions of Section 11(a) of the Act, and and, if required by Rule 158 of the Act, to advise you in writing file such statement as an exhibit to the next periodic report required to be filed by the Company under the Exchange Act covering the period when such earnings statement has been so made availableis released.
(h) During the period of three five years after the date of this Agreement, to the Company will furnish to you upon your written request copies as soon as available a copy of all reports each regular and periodic report or other communications furnished publicly available information of the Company and any of its subsidiaries mailed to the record holders of Common Stock or furnished to the Shares or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestexchange.
(i) To During the period when the Prospectus is required to be delivered under the Act or the Exchange Act in connection with sales of the Shares, to file all documents required to be filed by it with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act.
(j) The Company will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement and any amendment thereto (including financial statements and exhibits), each preliminary prospectus, the Prospectus and all amendments and supplements to any of them prior to or during the period specified in paragraph (b), (ii) the printing and delivery of this Agreement and the Blue Sky Memorandum (including the reasonable disbursements of counsel for the Underwriter relating to the printing and delivery of the Blue Sky Memorandum), (iii) the fee of and the filings and clearance, if any, with the National Association of Securities Dealers, Inc. (the "NASD") in connection with the Offering, (iv) the fee of and the listing of the Shares on the New York Stock Exchange, Inc. ("NYSE"), (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriter or by dealers to whom Shares may be sold, (vi) the preparation, issuance and delivery of certificates for the Shares to the Underwriter, (vii) the costs and charges of any transfer agent or registrar, (viii) any transfer taxes imposed on the sale by the Company of the Shares to the Underwriter and (ix) the fees and disbursements of the Company's counsel and accountants.
(k) The Company will use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market NYSE for a period of three years after the date Closing Date and thereafter unless the Company's Board of this AgreementDirectors determines that it is no longer in the best interests of the Company for the Shares to continue to be so listed.
(jl) To The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(km) If The Company will use the Registration Statement at net proceeds received by it from the time sale of the effectiveness Shares in the manner specified in the Prospectus Supplement under "Use of this Agreement does not cover all of the Shares, to Proceeds."
(n) The Company will prepare and file a Rule 462(b) Registration Statement or transmit for filing with the Commission registering the Shares not so covered in compliance accordance with Rule 462(b424(b) by 10:00 P.M.of the Act copies of the Prospectus.
(o) The Company will use its best efforts to continue to qualify as a "real estate investment trust" ("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986, New York City timeas amended (the "Code"), on for a period of two years after the date of this Agreement unless the Company's Board of Directors determines that it is no longer in the best interests of the Company to be so qualified.
(p) The Company hereby agrees not to, directly or indirectly, register the sale of, offer to sell, sell, contract to sell, grant any option to purchase or otherwise dispose of any Shares of common stock, par value $.01 per share, of the Company ("Common Shares") or any securities convertible into or exercisable or exchangeable for such Common Shares or in any other manner transfer all or a portion of the economic consequences associated with the ownership of any such Common Shares, except to the Underwriter pursuant to this Agreement, for a period of 45 days after the date of the Prospectus Supplement without the prior written consent of the Underwriter. Notwithstanding the foregoing, during such period the Company may (i) grant shares of common stock and stock options pursuant to any employee benefit or incentive plan or management or director stock purchase plan of the Company, (ii) issue Common Shares upon the exercise of such options, (iii) issue Common Shares in consideration of real property and/or other assets acquired by the Company or a subsidiary thereof, (iv) issue Common Shares in a merger or consolidation transaction in which the Company or a subsidiary thereof is the surviving entity and (v) issue Common Shares in exchange for partnership units in TriNet Sunnyvale Partners, L.P. and TriNet Property Partners, L.P., d/b/a TriNet Property Partners Limited Partnership.
Appears in 1 contract
Sources: Underwriting Agreement (Trinet Corporate Realty Trust Inc)
Agreements of the Company. The Company covenants and agrees with youthe several Underwriters that:
(a) To The Company will endeavor to cause the Registration Statement to become effective and will advise you the Representatives promptly and, if requested by youthe Representatives, to will confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment to it becomes effective, and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments Prospectus or supplements to the any Preliminary Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, and (iv) if within the Company is required period of time referred to file a Rule 462(bin paragraph (f) Registration Statement after the effectiveness of this Agreementbelow, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein not misleadingmisleading or the necessity to amend or supplement the Prospectus to comply with 16 the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment. If the Company elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Representatives with copies of the form of Rule 434 Prospectus in such numbers as the Representatives may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in Chicago on the business day immediately succeeding the date hereof. If the Company elects not to rely on Rule 434, the Company will provide the Representatives with copies of the form of Prospectus in such numbers as the Representatives may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, by the close of business in Chicago on the business day immediately succeeding the date hereof.
(b) To furnish to you five photocopies of signed copies of If, at the time that the Registration Statement as first filed becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Act, then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission Commission, in accordance with Rule 430A and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further copies of an amended Prospectus, or, if required by Rule 430A, a post-effective amendment to the Registration Statement and (including an amended Prospectus) containing all information so omitted.
(c) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Option Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you the Representatives shall not previously have been advised or to which you the Representatives shall reasonably object promptly after being so advised; providedadvised reasonably object in writing.
(e) Prior to the effective date of the Registration Statement, that the Company shall has delivered or will deliver to each of the Underwriters, without charge, copies of each form of Preliminary Prospectus in such quantities as they have reasonably requested or may hereafter reasonably request. The Company consents to the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; anduse, during such period, to prepare and file in accordance with the Commissionprovisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, promptly upon your reasonable requestprior to the effective date of the Registration Statement, any amendment to of each Preliminary Prospectus so furnished by the Company.
(f) On the effective date of the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for during such period as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is required by law to be delivered in connection with 17 offers or sales of the Shares by an Underwriter or a dealer, to furnish in New York City the Company will deliver to each Underwriter and any dealer dealer, without charge, as many copies of the Registration Statement, the Prospectus and each Preliminary Prospectus and the Incorporated Documents (and of any amendment or supplement to the Prospectussuch documents) as such Underwriter or dealer they may reasonably request.
(e) If during the period specified in Section 5(d). During such period, if any event shall occur occurs which in the judgment of the Company, or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to ensure that no part of the Prospectus includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances when at the time the Prospectus is delivered to a purchaser, not misleading, or ifthe Company will forthwith prepare, in submit to the opinion of counsel for the UnderwritersRepresentatives, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Representatives to the Company) to whom shares have been sold by the Underwriters or supplement to other dealers any amendments or supplements to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not comply with the standards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the light preliminary Blue Sky memorandum in which the Shares are lawfully offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the circumstances when it is so delivered, be misleading, or so that Shares and for such period of time thereafter as the Prospectus will comply with applicable lawis required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto) more than nine months after the first date upon which the Shares are offered to the public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingwith reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you the Representatives and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Representatives may requestdesignate, to will continue such registration registrations or qualification qualifications in effect so long as reasonably required for the distribution of the Shares and to will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated (i) to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified qualified, (ii) to file any general consent to service of process, or to (iii) take any action that would subject it to general consent to service of process or income taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subjectqualified.
(gh) To mail For a period of five years after the date of the Pricing Agreement:
(i) the Company will furnish to the Representatives (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders (B) copies of all annual reports and current
(ii) if at any time during such five year period, the Company shall cease filing with the Commission the annual reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i) above, the Company will forward to its stockholders generally and the Representatives and upon request to each of the other Underwriters (A) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, certified by independent public accountants, and (B) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be certified) of income and retained earnings of the Company for such period, which shall also be made publicly available; and
(iii) the Company will furnish to the Representatives and to the NASD, and by issuance of a press release, on the date of declaration, notice of all dividends, including the amount and medium of payment, the record date (which shall be not less than ten days subsequent to the declaration date) and the payment date (which shall be not less than ten days subsequent to the record date).
(i) The Company will make generally available to its stockholders security holders an earnings statement of the Company, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made available.
(h) During the period rules and regulations of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
thereunder (i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreementincluding Rule 158).
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than pursuant to Section 9 hereof or by notice given by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery Representatives of the Shares.
(k) If the Registration Statement at the time of the effectiveness termination of this Agreement does not cover all pursuant to Section 10 hereof), or if this Agreement shall be terminated by the several Underwriters because of any failure or refusal on the part of the Shares, Company to file a Rule 462(b) Registration Statement comply with the Commission registering terms or fulfill any of the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date conditions of this Agreement, the Company agrees to reimburse the several Underwriters for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) reasonably incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise. If this Agreement is terminated pursuant to Section 9 or Section 10 hereof, the several Underwriters shall themselves bear any such out-of-pocket expenses incurred by them.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Placement Agent as follows:
(a) To advise you When the Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Placement Agent promptly andfollowing such filing.
(b) The Company will use commercially reasonable efforts to keep the Registration Statement effective at all times during the period commencing on the effective date of the Registration Statement and continuing thereafter until the closing of the sale of the Units and for at least six months thereafter, and until such later date that either (i) all Warrants shall have either been exercised in full or terminated or (ii) in the opinion of counsel, an exemption from the registration requirements of applicable federal and state securities laws is available for the issuance of all Securities and the resale thereof (the “Registration Period”).1
(c) The Company will not, during the Registration Period, file any amendment or supplement to the Registration Statement or the Prospectus, except as required by law, unless a copy thereof shall first have been submitted to the Placement Agent within a reasonable period of time prior to the filing thereof and the Placement Agent shall not have reasonably and timely objected thereto in good faith.
(d) The Company will notify the Placement Agent promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective at any time during the Registration Period; (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectuses or for additional information, information at any time during the Registration Period; (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, the Prospectus or of the suspension of qualification of the Shares for offering or sale in any jurisdictionIssuer Free Writing Prospectus, or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, (iii) when at any amendment to time during the Registration Statement becomes effective, Period; (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during the period referred to Registration Period that in Section 5(d) below which the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus 1 NOTE: The Registration Statement must be kept effective at all times until the Warrants are either exercised or expire. untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Placement Agent promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably requestfilings.
(e) If during If, at any time when a Prospectus relating to the period specified in Section 5(d)Securities is required to be delivered under the Act, the Company becomes aware of the occurrence of any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Placement Agent, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agent, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Act or the Rules and Regulations, forthwith the Company will promptly notify the Placement Agent and, subject to Section 5(b) hereof, will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in the ProspectusPlacement Agent, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer the Placement Agent may reasonably request in writingrequest. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Placement Agent, and the Placement Agent agrees to provide to each Investor, prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto.
(f) The Company will furnish to the Placement Agent and its counsel, without charge (i) one copy of the Registration Statement, including financial statements and schedules, and all exhibits thereto and (ii) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Placement Agent may reasonably request.
(g) The Company will comply with all the undertakings contained in the Registration Statement.
(h) The Company will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Placement Agent, which shall not be unreasonably withheld.
(i) The Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations.
(j) Prior to any public offering the sale of the SharesUnits to the Investors, to the Company will cooperate with you the Placement Agent and its counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agent may reasonably and timely request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gk) To mail The Company will apply the net proceeds from the offering and make generally available sale of the Units in substantially the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(l) The Company will take all actions necessary to its stockholders ensure that the Shares and the Warrant Shares are listed or approved for listing on The Nasdaq Capital Market at the time of Closing, with such listing to occur at the Closing or as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made availablethereafter.
(hm) During the period of three years after the date of this AgreementThe Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to furnish to you upon your written request copies cause or result in, or which will constitute, stabilization of all reports or other communications furnished to the record holders price of its Common Stock to facilitate the sale or furnished to or filed with the Commission or resale of any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestSecurities.
(in) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the The Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover shall comply with all of the Sharesterms and conditions set forth in the Company Lock-Up Agreement, including without limitation, the covenant that it shall not consent to file any request by any other party subject to a Rule 462(b) Registration Statement with lock-up agreement to permit the Commission registering the Shares not so covered in compliance with Rule 462(b) sale by 10:00 P.M., New York City time, on the date such party of this Agreementany shares of Common Stock.
Appears in 1 contract
Agreements of the Company. The Company hereby covenants and agrees with youas ---------------------------- follows:
(a) To advise you promptly andAll Shares will, if requested by youupon issuance in accordance with the terms of this Warrant, to confirm such advice in writingbe validly issued, (i) of any request by the Commission for amendments fully paid and nonassessable and free from all taxes, liens and charges with respect to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timethereof.
(b) To furnish to you five photocopies of signed copies of During the Registration Statement as first filed with Exercise Period, the Commission and of each amendment to it, including Company shall at all exhibitstimes have authorized, and to furnish to you and each Underwriter designated by you such reserved for the purpose of issuance upon exercise of this Warrant, a sufficient number of conformed copies shares of Common Stock to provide for the Registration Statement as so filed and full exercise of each amendment to it, without exhibits, as you may reasonably requestthis Warrant.
(c) To prepare The Company shall promptly secure the Prospectuslisting of the shares of Common Stock issuable upon exercise of this Warrant upon each national securities exchange or automated quotation system, if any, upon which shares of the form Company's Common Stock are then listed (subject to official notice of issuance upon exercise of this Warrant) and substance shall maintain, so long as any other shares of which Common Stock shall be satisfactory to youso listed, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus listing of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you all shares of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and Common Stock from time to time thereafter for such period as in issuable upon the opinion exercise of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter this Warrant; and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any list on each national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for or automated quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Datesystem, as the case may be, and to satisfy all conditions precedent to the delivery shall maintain such listing of, any other shares of capital stock of the SharesCompany issuable upon the exercise of this Warrant if and so long as any shares of the same class shall be listed on such national securities exchange or automated quotation system.
(kd) If The Company will not, by amendment of its charter or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the Registration Statement at the time observance or performance of any of the effectiveness terms to be observed or performed by it hereunder, but will at all times in good faith assist in the carrying out of all the provisions of this Agreement does Warrant and in the taking of all such action as may reasonably be requested by the holder of this Warrant in order to protect the exercise privilege of the holder of this Warrant against dilution or other impairment, consistent with the tenor and purpose of this Warrant. Without limiting the generality of the foregoing, the Company (i) will not cover increase the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, and (ii) will take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant.
(e) So long as the holder beneficially owns this Warrant (or portion thereof), the Company shall maintain its corporate existence and shall not merge, consolidate or sell all or substantially all of the SharesCompany's assets, except in the event of a merger or consolidation or sale of all or substantially all of the Company's assets, where (i) the successor or acquiring entity and, if an entity different from the successor or acquiring entity, the entity whose securities into which the Warrant shall become exercisable pursuant to file Section 4(b) hereof, in such transaction assumes the Company's obligations hereunder and (ii) the entity whose securities into which the Warrant shall become exercisable pursuant to Section 4(b) hereof is a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, publicly traded corporation whose Common Stock is listed for trading on the date NNM, Nasdaq SmallCap, NYSE, AMEX or OTC Bulletin Board.
(f) This Warrant will be binding upon any entity succeeding to the Company by merger, consolidation or acquisition of this Agreementall or substantially all the Company's assets.
Appears in 1 contract
Sources: Stock Purchase Warrant (Nettaxi Inc)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i1) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii2) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii3) when any amendment to the Registration Statement becomes effective, (iv4) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v5) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of three signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the Prospectus in a form and substance of which shall be satisfactory to you, approved by you and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares Notes by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M.4:00 P.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters Underwriter a prospectus is required by law to be delivered in connection with sales by an the Underwriter or a dealer, to furnish in New York City to each the Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such the Underwriter or any such dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the UnderwritersUnderwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the UnderwritersUnderwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each the Underwriter and to any dealer as many copies thereof as such the Underwriter or any such dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the SharesNotes, to cooperate with you and counsel for the Underwriters at the expense of the Sellers Underwriter in connection with the registration or qualification of the Shares Notes for offer and sale by the several Underwriters you and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares Notes and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the SharesNotes, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders security holders as soon as practicable an earnings statement covering the twelve-month period ending December 31______________, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During So long as the period of three years Notes are outstanding and so long as the Indenture so requires to mail and make generally available as soon as practicable after the date end of this Agreementeach fiscal year to the record holders of the Notes (1) all documents filed with the Commission by the Company pursuant to Sections 13, 14 and 15 of the Securities Exchange Act of 1934, as amended (the "REPORTS"), which requirement to furnish shall be deemed satisfied upon the filing of such Reports with the Commission and (2) for any period during which the Company no longer files such Reports with the Commission, to mail and make generally available to the record holders of the Notes the information that would otherwise be included in Reports as soon as reasonably available.
(i) So long as the Notes are outstanding, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Notes under the Act and all other fees or expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing prior to or during the period specified in Section 5(d), including the mailing and delivering of copies thereof to the Underwriter and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Notes to the Underwriter, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Notes, (iv) all expenses in connection with the registration or qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriter in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriter in connection with the review and clearance of the offering of the Notes by the National Association of Securities Dealers, Inc., (vi) the cost of printing certificates representing the Notes, (vii) the costs and charges of any transfer agent, registrar and/or depositary (including the Depository Trust Company), (viii) the fees and expenses of the qualified independent underwriter (the "QIU") (including the fees and disbursements of counsel to the QIU), (ix) any fees charged by rating agencies for the rating of the Notes, (x) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Notes and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(k) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Notes (other than (1) the Notes and (2) commercial paper issued in the ordinary course of business), without the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation.
(l) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Notes.
(m) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesNotes.
(kn) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the SharesNotes, to file a Rule 462(b) Registration Statement with the Commission registering the Shares Notes not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(o) The Company will, for so long as any of the Notes are outstanding and if, in the reasonable judgment of the Underwriter or its counsel, the Underwriter or any of its affiliates (as defined in the rules and regulations under the Act) is required to deliver a prospectus (any such prospectus, a "MARKET MAKING PROSPECTUS") in connection with sales of the Notes, to (i) provide the Underwriter, without charge, as many copies of the Market Making Prospectus as the Underwriter may reasonably request, (ii) periodically amend the Registration Statement so that the information contained in the Registration Statement complies with the requirements of Section 10(a) of the Act, (iii) amend the Registration Statement or amend or supplement the Market Making Prospectus when necessary to reflect any material changes in the information provided therein and promptly file such amendment or supplement with the Commission, (iv) provide the Underwriter with copies of each amendment or supplement so filed and such other documents, including opinions of counsel and "comfort" letters, as the Underwriter may reasonably request and (iv) indemnify the Underwriter with respect to the Market Making Prospectus and if applicable, contribute to any amount paid or payable by the Underwriter in a manner substantially identical to that specified in Section 7 hereof (with appropriate modifications). The Company consents to the use, subject to the provisions of the Act and the state securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Underwriter, of each Market Making Prospectus.
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach of you that:
(a) To It will, if the Registration Statement has not heretofore become effective under the Act, and if otherwise necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A of the Act, a post-effective amendment to the Registration Statement, in each case as soon as practicable after the execution and delivery of this Agreement, and it will use its best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. If the Registration Statement has become effective and the Company, omitting from the Prospectus certain information in reliance upon Rule 430A of the Act, elects not to file a post-effective amendment pursuant to Rule 430A of the Act, it will file the form of Prospectus required by Rule 424(b) of the Act within the time period specified by Rule 430A and Rule 424(b) of the Act. The Company will otherwise comply in a timely manner with all applicable provisions of Rule 424 and Rule 430A of the Act.
(b) It will advise you DLJ promptly and, if requested by youDLJ, to confirm such advice in writing, (i) when the Registration Statement has become effective, if and when the Prospectus is sent for filing pursuant to Rule 424 of the Act and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the receipt of any request by comments from the Commission for amendments or any state securities commission or any other regulatory authority that relate to the Registration Statement or amendments requests by the Commission or any state securities commission or any other regulatory authority for any amendment or supplement to the Registration Statement or any amendment or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of the suspension of qualification of the Shares Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when purpose by the Commission or any amendment to the Registration Statement becomes effective, state securities commission or any other regulatory authority and (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below paragraph (d), below, which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement in order to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus untrue or which requires the making of any addition to or change in the Prospectus in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading. If The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Securities under any Federal or state securities or Blue Sky laws, and, if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or any other regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Company will shall use its every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To furnish to you five photocopies of signed copies of Promptly after the Registration Statement as first filed with the Commission and of each amendment to itbecomes effective, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters your reasonable judgment a prospectus is required by law to be delivered in connection with sales of the Securities by an Underwriter or a dealer, to it will furnish in New York City to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus Prospectus, including all documents incorporated by reference therein, (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer you may reasonably request.
(ed) If during the period specified in paragraph (c) of this Section 5(d), 4 any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, which it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when existing as of the date the Prospectus is delivered to an offeree or a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to amend or supplement the Prospectus to comply with applicable any law, forthwith to it will promptly prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not not, in the light of the circumstances when it existing as of the date the Prospectus is so delivered, be misleading, or so that the Prospectus and will comply with applicable law, and to will promptly notify you of such event and amendment or supplement and furnish to each Underwriter and to any dealer as many you without charge such number of copies thereof as such Underwriter or dealer you may reasonably request in writingrequest.
(e) It will make generally available to its security holders, as soon as practicable and for the time period specified by Rule 158 under the Act, a consolidated earnings statement which shall satisfy the provisions of Section 11(a) and Rule 158 of the Act.
(f) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all reasonable costs, charges, expenses, fees and taxes incurred in connection with or incident to (i) the preparation, printing, filing, distribution and delivery under the Act of the Registration Statement (including financial statements and exhibits), each preliminary prospectus, the Prospectus and all amendments and supplements thereto, (ii) the registration with the Commission and the issuance and delivery of the Securities, (iii) the printing and delivery of this Agreement, the Indentures and all other agreements, memoranda, reports, correspondence and other documents printed, distributed and delivered in connection with the offering of the Securities, (iv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the jurisdictions referred to in paragraph (i) below (including, in each case, the reasonable fees and disbursements of counsel relating to such registration or qualification and memoranda relating thereto and any filing fees in connection therewith), (v) furnishing such copies of the Registration Statement (including exhibits), Prospectus and preliminary prospectuses, and all amendments and supplements to any of them, including any document incorporated by reference therein, as may be reasonably requested by the Underwriters or by dealers to whom Securities may be sold, (vi) any filing with the National Association of Securities Dealers, Inc. (the "NASD") in connection with the offering of the Securities (including, without limitation, any filing fees in connection therewith but excluding the fees of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, legal counsel to the Underwriters ("Underwriters' Counsel")), (vii) the listing of the Securities on the New York Stock Exchange (the "NYSE"), (viii) the rating of the Securities by investment rating agencies, (ix) any "qualified independent underwriter" as required by Rule 2720 of the NASD (including fees and disbursements of counsel for such qualified independent underwriter) and (x) the performance by the Company of its other obligations under this Agreement, including (without limitation) the fees of the Trustees, the cost of their respective personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, and all expenses incident to the sale and delivery of the Securities to the Underwriters.
(g) It will furnish to DLJ, without charge, one signed copy (plus one additional signed copy to Underwriters' Counsel) of the Registration Statement as first filed with the Commission and of each amendment or supplement to it, including each post-effective amendment, all exhibits filed therewith and all documents incorporated by reference therein, and such number of conformed copies of the Registration Statement as so filed and of each amendment to it, including each post-effective amendment, but without exhibits, as you may reasonably request.
(h) It will not file any amendment or supplement to the Registration Statement, whether before or after the time when it becomes effective, or make any amendment or supplement to the Prospectus (other than any document required to be filed under the Securities Exchange Act of 1934, as amended, including the rules and regulations thereunder (collectively, the "Exchange Act") that upon filing is deemed to be incorporated by reference therein) of which you shall not previously have been advised and provided a copy prior to the filing thereof or to which you shall reasonably object unless in the opinion of legal counsel to the Company such amendment or supplement is required by law to be filed; it will furnish to you at or prior to the filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus; and it will prepare and file with the Commission, promptly upon your reasonable request, any amendment or supplement to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Securities by you, and will use its best efforts to cause the same to become effective as promptly as possible.
(i) Prior to any public offering of the SharesSecurities, to it will cooperate with you and counsel for the Underwriters at the expense of the Sellers Underwriters' Counsel in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such United States jurisdictions as you may request, to . The Company will continue such registration or qualification in effect so long as required by law for distribution of the Shares Securities and to will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, howeverqualification (PROVIDED, that the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or nor to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject).
(gj) To mail It timely will complete all required filings and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the otherwise comply fully in a timely manner with all provisions of the Exchange Act to effect the registration of the Securities pursuant thereto, and, during the period specified in paragraph (c) of this Section 11(a4, will file timely all reports and any definitive proxy or information statement required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Act, Exchange Act and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To it will use its best efforts to list for quotation cause the Shares Securities to be listed on the Nasdaq National Market NYSE.
(k) To the extent permitted by law, it will not voluntarily claim, and will actively resist any attempts to maintain claim, the listing benefit of any usury laws against the holders of the Shares Securities.
(l) It will use the proceeds from the sale of the Securities in the manner described in the Prospectus under the caption "Use of Proceeds."
(m) During the period beginning on the Nasdaq National Market for a period of three years after the date of this AgreementAgreement and continuing to and including the Closing Date, it will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants, rights, or options to purchase debt securities of the Company (other than (i) the Securities and (ii) commercial paper issued in the ordinary course of business), without your prior written consent.
(jn) To It will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company it prior to or after the Closing Date or any Option Closing Date, as the case may be, and will use its reasonable best efforts to satisfy all conditions precedent on its part to be satisfied prior to the delivery of the SharesSecurities.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of (5) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December March 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholders hereunder for which provision is not otherwise made in this Section. The provisions of this Section shall not supersede or otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of such expenses among themselves.
(j) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Sources: Underwriting Agreement (Emcore Corp)
Agreements of the Company. The Company agrees with youthe several Underwriters that:
(a) To During the period beginning with the Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Basic Prospectus unless, in each case, the Company has furnished the Representatives a copy for their review prior to such time, and the Company will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings.
(b) During the Prospectus Delivery Period, the Company will promptly advise you promptly andthe Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, if requested by youand any supplements or amendments thereto, have been filed with the Commission pursuant to confirm such advice in writingRules 424(b) and 433, respectively, (iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement has been filed or becomes effective, (iii) of any request by the Commission for amendments to any amendment of the Registration Statement or amendments any Rule 462(b) Registration Statement, or supplements for any supplement to the Final Prospectus or for any additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, notice objecting to its use or the initiation institution or threatening of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective that purpose and (v) of the happening receipt by the Company of any event during notification with respect to the period referred to suspension of the qualification of the Securities for sale in Section 5(d) below which makes any statement of a material fact made in the Registration Statement jurisdiction or the Prospectus untrue initiation or which requires threatening of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleadingproceeding for such purpose. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will use its reasonable best efforts to obtain prevent the withdrawal issuance of any such stop order or lifting the occurrence of any such order at suspension or objection to the earliest possible time.
(b) To furnish to you five photocopies of signed copies use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, and subject to the first filed with the Commission and sentence of each paragraph (a) of this Section 4, by filing an amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as so filed and of each amendment to it, without exhibits, soon as you may reasonably requestpracticable.
(c) To The Company will prepare a final term sheet, containing solely a description of the Securities and the offering thereof, substantially in the form approved by you and attached as Schedule IV hereto, and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(d) If, during the Prospectus Delivery Period, any event occurs as a result of which, the Final Prospectus, the form and substance Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be satisfactory necessary to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to amend the Registration Statement and not to make any amendment or supplement the Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Prospectus of which you shall not previously have been advised Act or to which you shall reasonably object after being so advised; providedthe Exchange Act or the respective rules and regulations thereunder, that the Company shall have promptly will (i) notify the right to make Representatives of such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; andevent, during such period, to (ii) prepare and file with the Commission, promptly upon your subject to the first sentence of paragraph (a) of this Section 4, an amendment to the Registration Statement, a new registration statement or an amendment or supplement to the Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use its reasonable request, best efforts to have any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the new registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders statement declared effective as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.and
Appears in 1 contract
Sources: Underwriting Agreement (Johnson Controls International PLC)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.foreign
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31June 30, 2000 1999 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to list for quotation pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares on under the Nasdaq Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Market Association of Securities Dealers, Inc., (vi) all costs and expenses incident to maintain the listing of the Shares on the Nasdaq National Market for a period Market, (vii) the cost of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to file a Rule 462(b) Registration Statement with the Commission registering performance of the Shares obligations of the Company and the Selling Stockholders hereunder for which provision is not so covered otherwise made in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date this Section. The provisions of this AgreementSection shall not supersede or otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of such expenses among themselves.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Placement Agents as follows:
(a) To advise you promptly andThe Company will not, if requested during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares, file any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have objected thereto in good faith.
(b) The Company will notify the Placement Agents promptly, and will confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement relating to the sales of the Shares becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional informationinformation relating to the sales of the Shares, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment that purpose or the threat thereof relating to the Registration Statement becomes effectivesales of the Shares, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in the second sentence of Section 5(d4(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when in which they are made, not misleading in any material respect, and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus relating to the sales of the Shares. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Securities Act Rules and Regulations or has omitted any information from the Base Prospectus pursuant to Rule 430B or Rule 430C of the Securities Act Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A, Rule 430B or Rule 430C, as applicable, and notify the Placement Agents promptly of all such filings to the extent related to the sale of the Shares. If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Securities Act Rules and Regulations.
(c) The Company will furnish to each Placement Agent, without charge, one signed copy of each of the Registration Statement and of any post-effective amendment thereto relating to a sale of the Shares, including financial statements and schedules, and all exhibits thereto and will furnish to each Placement Agent, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) From time to time, the Company will deliver to the Placement Agents, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Placement Agents may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Placement Agents, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to a purchaser, not misleading, or ifthe Placement Agents should be set forth in the Prospectus in order to make any statement therein, in the opinion light of counsel for the Underwriterscircumstances under which it was made, not misleading in any material respects, or if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Placement Agents, without charge, such number of copies of such supplement or supplement amendment to the Prospectus so that as the statements in Placement Agents may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares, if such document would be deemed to be incorporated by reference into the Prospectus, as so amended or supplemented, will that is not in approved by the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingLead Placement Agent after reasonable notice thereof.
(f) Prior to any public offering of the Shares, to the Company will cooperate with you the Placement Agents and counsel for to the Underwriters at the expense of the Sellers Placement Agents in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agents may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail The Company will, so long as required under the Securities Act Rules and make generally available Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an earnings annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiaries, if any, for such quarter in reasonable detail.
(h) During the period of one year commencing on the Closing Date, the Company will furnish or make available to the Placement Agents copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock.
(i) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the twelve-month period ending December 31, 2000 Effective Date that shall will satisfy the provisions of Section 11(a) of the ActSecurities Act (including Rule 158 of the Securities Act Rules and Regulations). For the purpose of the preceding sentence, and to advise you in writing when such statement has been so made available.
(h) During “Availability Date” means the period of three years 40th day after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities end of the Company fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing last quarter of the Shares on Company’s fiscal year, “Availability Date” means the Nasdaq National Market for a period of three years 75th day after the date end of this Agreementsuch fourth fiscal quarter.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: Placement Agency Agreement (Sonus Pharmaceuticals Inc)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by youSubject to Section 5(b), to comply with the requirements of Rule 430A and notify Dona▇▇▇▇▇, ▇▇fk▇▇ & ▇enr▇▇▇▇ ▇▇▇urities Corporation immediately, and confirm such advice the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for amendments any amendment to the Registration Statement or amendments any amendment or supplements supplement to the Prospectus or for additional information, and (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(iiib) when To give Dona▇▇▇▇▇, ▇▇fk▇▇ & ▇enr▇▇▇▇ ▇▇▇urities Corporation notice of its intention to file or prepare any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a including any filing under Rule 462(b)) Registration Statement after or any amendment, supplement or revision to either the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made prospectus included in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timetime it became effective or to the Prospectus, to furn▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇fk▇▇ & ▇enr▇▇▇▇ ▇▇▇urities Corporation with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and not to file or use any such document to which Dona▇▇▇▇▇, ▇▇fk▇▇ & ▇enr▇▇▇▇ ▇▇▇urities Corporation or counsel for the Underwriters shall reasonably object within three Business Days after being furnished such documents.
(bc) To furnish That the Company has furnished or will deliver to you five photocopies of the Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to it, thereto (including exhibits filed therewith or incorporated by reference therein) and signed copies of all exhibitsconsents and certificates of experts, and will also deliver to furnish to you the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and of each Underwriter designated by you such number amendment thereto (without exhibits) for each of conformed the Underwriters. The copies of the 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 EDGA▇, ▇▇cept to the extent permitted by Regulation S-T.
(d) That the Company has delivered to each Underwriter, without charge, as so filed and many copies of each amendment preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to itthe use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without exhibitscharge, during the period when the Prospectus is required to be delivered under the 1933 Act or the Securities Exchange of 1934 (the "1934 ACT"), such number of copies of the Prospectus (as you amended or supplemented) as such Underwriter may reasonably request.
(c) To prepare . The Prospectus and any amendments or supplements thereto furnished to the Prospectus, Underwriters will be identical to the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form electronically transmitted copies thereof filed with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) belowpursuant to EDGA▇, not to file any further amendment ▇▇cept to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required extent permitted by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file Regulation S-T.
(e) To comply with the Commission, promptly upon your reasonable request, any amendment 1933 Act so as to permit the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with completion of the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of Securities as contemplated in this Agreement and from the Prospectus. If at any time to time thereafter for such period as in the opinion of counsel for the Underwriters when a prospectus is required by law the 1933 Act to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)Securities, any event shall occur or condition shall exist as a result of whichwhich it is necessary, in the reasonable opinion of counsel for the UnderwritersUnderwriters or for the Company, it becomes necessary to amend the Registration Statement or amend or supplement any Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading, or ifif it shall be necessary, in the reasonable opinion of counsel for any such counsel, at any such time to amend the Underwriters, it is necessary to Registration Statement or amend or supplement the any Prospectus in order to comply with applicable lawthe requirements of the 1933 Act, forthwith to the Company will promptly prepare and file with the Commission an appropriate Commission, subject to Section 5(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Prospectus so that Underwriters such number of copies of such amendment or supplement as the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer Underwriters may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to To timely file such consents reports pursuant to service of process or other documents the 1934 Act as may be are necessary in order to effect such registration or qualification; providedmake generally available to its securityholders an earnings statement for the purposes of, however, that and to provide the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectusbenefits contemplated by, the Registration Statement, any preliminary prospectus or the offering or sale last paragraph of Section 11(a) of the Shares, in any jurisdiction in which it is not now so subject1933 Act.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering use the twelve-month period ending December 31, 2000 that shall satisfy net proceeds received by it from the provisions of Section 11(a) sale of the Act, and to advise you Securities in writing when such statement has been so made availablethe manner specified in the Prospectus under "Use of Proceeds."
(h) During So long as the period of three years after the date of this AgreementSecurities are outstanding, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record its security holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its best efforts to list for quotation obligations under this Agreement, including: (i) the Shares on the Nasdaq National Market fees, disbursements and to maintain the listing expenses of the Shares on Company's counsel and the Nasdaq Company's accountants in connection with the registration and delivery of the Securities under the 1933 Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Securities, (iv) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Securities by the National Market Association of Securities Dealers, Inc., (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) any fees charged by rating agencies for a period the rating of three years after the date Securities, (viii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture, the Escrow Agreement and the Securities and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this AgreementSection.
(j) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of Dona▇▇▇▇▇, ▇▇fk▇▇ & ▇enr▇▇▇▇ ▇▇▇urities Corporation.
(k) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesSecurities.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the SharesSecurities, to file a Rule 462(b) Registration Statement with the Commission registering the Shares Securities not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the 1933 Act.
(m) Pursuant to the Escrow Agreement, to deposit the Initial Escrow Amount into an escrow account in the United States, representing the Escrow Funds, and will take all actions necessary to pledge, assign and set over to the Trustee, for the benefit of the holders of the Securities, and irrevocably grant to the Trustee for the benefit of the holders of the Securities a first priority perfected security interest in, all of its right, title and interest in such escrow account, all funds held therein and all other Escrow Collateral (as such term is defined in the Escrow Agreement, the "ESCROW COLLATERAL") held by the Trustee or on its behalf, in order to secure the obligations and indebtedness of the Company under the Indenture, the Escrow Agreement and the Securities.
(n) To furnish to the Trustee on each anniversary of the Issue Date (upon receipt of written notice from Escrow Agent) until the date upon which the balance of Escrow Funds shall have been reduced to zero, an Opinion of Counsel, dated as of such date, either (i) stating that (A) in the opinion of such counsel, action has been taken with respect to the recording, registering, filing, re-recording, re-registering and refiling of all supplemental indentures, financing statements, continuation statements or other instruments of further assurance as is necessary to maintain the lien of the Escrow Agreement and reciting the details of such action or referring to prior Opinions of Counsel in which such details are given and (B) based on relevant laws as in effect on the date of such Opinion of Counsel, all financing statements and continuation statements have been executed and filed that are necessary as of such date and during the succeeding 12 months fully to preserve and protect, to the extent such protection and preservation are possible by filing, the rights of the holders of Securities and the Trustee hereunder and under the Escrow Agreement with respect to the security interests in the Escrow Collateral or (ii) stating that, in the opinion of such counsel, no such action is necessary to maintain such lien and assignment.
(o) During the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, to file all documents required to be filed with the Commission pursuant to the 1934 Act and rules and regulations of the Commission thereunder within the time periods referred to therein.
(p) To comply with Rule 463 of the 1933 Act.
Appears in 1 contract
Sources: Underwriting Agreement (Global Telesystems Group Inc)
Agreements of the Company. The Company agrees with youthe several ------------------------- Underwriters as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Debentures may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares Debentures for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during event, including the period referred filing of any information, documents or reports pursuant to in Section 5(d) below the Exchange Act, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge (i) three signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits to the Registration Statement, and to furnish to you and each Underwriter designated by you (ii) such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may reasonably request, and (iii) such number of copies of the Indenture as you may reasonably request.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bThe Company will not (i) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised; providedadvised or (ii) so long as, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the written opinion of counsel for the Underwriters (a prospectus copy of which will be delivered to the Company), a Prospectus is required by law to be delivered in connection with sales by an any Underwriter or a dealer, file any information, documents or reports pursuant to furnish the Exchange Act, without delivering a copy of such information, documents or reports to you, as Representatives of the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in New York City such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Debentures are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the Underwriters a Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer, the Company will expeditiously deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer you may reasonably request.
. The Company consents to the use of the Prospectus (eand of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Debentures are offered by the several Underwriters and by all dealers to whom Debentures may be sold, both in connection with the offering and sale of the Debentures and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, that in the judgment of the Company or in the written opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable the Act or any other law, forthwith the Company will make every reasonable effort to prepare and and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment or supplement thereto, and will expeditiously furnish to the Prospectus so Underwriters and dealers a reasonable number of copies thereof. In the event that the statements in the ProspectusCompany and you, as so Representatives of the several Underwriters, agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Debentures for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent taxation or to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the SharesDebentures, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(all(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During So long as any of the period of three years after Debentures are outstanding, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed Commission, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(ij) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Debentures substantially in accordance with the description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will make every reasonable effort to timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) The Company will use its best efforts to list for quotation have the Shares on the Nasdaq National Market and Debentures listed, subject to maintain the listing notice of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City timeissuance, on the date of this AgreementNew York Stock Exchange on or before the Closing Date.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Placement Agent as follows:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of the Placement Agent (which approval shall not be unreasonably withheld or delayed), pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Placement Agent promptly andfollowing such filing.
(b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Securities by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to the Placement Agent within a reasonable period of time prior to the filing thereof and the Company has in good faith considered any reasonable objections or comments of the Placement Agent.
(c) The Company will notify the Placement Agent promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information, but only during the period mentioned in Section 4(b); (ii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdictionStatement, or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, but only during the period mentioned in Section 4(b); (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during the period referred to mentioned in Section 5(d4(b) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Placement Agent promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when a Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Securities is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Securities Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Placement Agent, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agent, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Securities Act, forthwith the Company will promptly notify the Placement Agent and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in Placement Agent, without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Placement Agent may reasonably request. The Company consents to the light use of the circumstances when it is so deliveredProspectus or any amendment or supplement thereto by the Placement Agent.
(e) The Company will furnish to the Placement Agent and its counsel, be misleadingwithout charge (i) one conformed copy of the Registration Statement as originally filed with the Commission and each amendment thereto, or so that the Prospectus will comply with applicable lawincluding financial statements and schedules, and all exhibits thereto, and (ii) so long as a prospectus relating to furnish the Securities is required to each Underwriter and to any dealer be delivered under the Securities Act, as many copies thereof of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as such Underwriter or dealer the Placement Agent may reasonably request in writingrequest.
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(g) Prior to any public offering the sale of the SharesSecurities to the Investors, to the Company will cooperate with you the Placement Agent and its counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agent may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will not make generally available any offer relating to its stockholders as soon as practicable the Securities that would constitute an earnings statement covering Issuer Free Writing Prospectus without the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) prior written consent of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestPlacement Agent.
(i) To use its best efforts The Company will retain in accordance with the Securities Act all Issuer Free Writing Prospectuses not required to list for quotation be filed pursuant to the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this AgreementSecurities Act.
(j) To use its reasonable best efforts to do The Company will apply the net proceeds from the offering and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery sale of the SharesSecurities in the manner set forth in the Prospectus under the caption “Use of Proceeds.”
(k) If the Registration Statement The Company will not at the time any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the effectiveness of this Agreement does not cover all price of the Shares, Common Stock to file a Rule 462(b) Registration Statement with facilitate the Commission registering sale or resale of any of the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementSecurities.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Underwriter[s] as follows:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of the Underwriter[s], pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Underwriter[s] promptly andfollowing such filing.
(b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to the Underwriter[s] within a reasonable period of time prior to the filing thereof and the Underwriter[s] shall not have reasonably objected thereto in good faith.
(c) The Company will notify the Underwriter[s] promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective; (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information, ; (ii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement Statement, the Prospectus or of the suspension of qualification of the Shares for offering or sale in any jurisdictionIssuer Free Writing Prospectus, or the initiation of any proceeding proceedings for such purposes, that purpose or the threat thereof; (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during that in the period referred to in Section 5(d) below which judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Underwriter[s] promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when a Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Shares is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Underwriter[s], it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Underwriter[s], include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Underwriter[s], at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Securities Act or the Rules, forthwith to the Company will promptly notify the Underwriter[s] and will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in Underwriter[s], without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Underwriter[s] may reasonably request. The Company consents to the light use of the circumstances when it is so deliveredProspectus or any amendment or supplement thereto by the Underwriter[s], be misleadingand the Underwriter[s] agree[s] to provide to each Investor, or so that prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto.
(e) The Company will comply furnish to the Underwriter[s] and [its][their] counsel, without charge (i) one conformed copy of the Registration Statement as originally filed with applicable lawthe Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to furnish the Shares is required to each Underwriter and to any dealer be delivered under the Act, as many copies thereof of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as such Underwriter or dealer the Underwriter[s] may reasonably request in writingrequest.
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(g) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriter[s].
(h) The Company will retain in accordance with the Rules all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules.
(i) Prior to any public offering the sale of the SharesShares to the Investors, to the Company will cooperate with you the Underwriter[s] and [its][their] counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriter[s] may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gj) To mail The Company will apply the net proceeds from the offering and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) sale of the Act, and to advise you Shares in writing when such statement has been so made availablethe manner set forth in the Prospectus under the caption “Use of Proceeds.”
(hk) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the The Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To will use its best efforts to list for quotation ensure that the Shares are listed or quoted on the Nasdaq National NASDAQ Capital Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness Closing; provided, however, if the Shares are not approved for listing on the NASDAQ Capital Market or management of this Agreement does the Company reasonably believes that the Shares will not cover all be approved for listing due to the fact that initial listing criteria of the NASDAQ Capital Market will not be met by the Company at the time of the Closing, then the Company will use its best efforts to ensure that the Shares are quoted on the over-the-counter bulletin board (the “OTCBB”).
(l) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of any of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which that makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of seven signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which that may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of of
Section 11(a) of the Act and any rules of the Commission thereunder, including Rule 158 under the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed filed, on a publicly-available basis, with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to list pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for quotation offer and sale under the securities or Blue Sky laws of the several states of the United States and the provinces of Canada, and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda or Canadian "wrapper" documents in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in the United States and Canada in connection with such registration, qualification, memoranda or documents relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all costs and expenses incident to the listing of the Shares on the Nasdaq National Market Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholders hereunder (other than the indemnification and contribution obligations of the Selling Stockholders under Section 8 below) for which provision is not otherwise made in this Section. The provisions of this Section shall not supersede or otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of such expenses among themselves.
(j) To use its best efforts to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Placement Agents as follows:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of the Placement Agents, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Placement Agents promptly andfollowing such filing.
(b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement, file any amendment or supplement to the Registration Statement or the Prospectus unless a copy thereof shall first have been submitted to the Placement Agents within a reasonable period of time prior to the filing thereof and the Placement Agents shall not have reasonably objected thereto in good faith.
(c) The Company will notify the Placement Agents promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional informationinformation related to the offering of the Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, but only during the period mentioned in Section 4(b); (ii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdictionStatement, or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, but only during the period mentioned in Section 4(b); (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during the period referred to mentioned in Section 5(d4(b) below which that in the reasonable judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Placement Agents promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when a Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Shares is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Placement Agents, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Placement Agents, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agents, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Act or the Rules and Regulations, forthwith the Company will promptly notify the Placement Agents and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in Placement Agents, without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Placement Agents may reasonably request. The Company consents to the light use of the circumstances when it is so deliveredProspectus or any amendment or supplement thereto by the Placement Agents.
(e) The Company will furnish, be misleadingupon request, or so that to the Prospectus will comply Placement Agents and its counsel, without charge (i) one conformed copy of the Registration Statement as originally filed with applicable lawthe Commission and each amendment thereto, including financial statements and schedules, and all exhibits thereto, (ii) so long as a prospectus relating to furnish the Shares is required to each Underwriter and to any dealer be delivered under the Act, as many copies thereof of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as such Underwriter or dealer the Placement Agents may reasonably request in writingrequest.
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(g) Prior to any public offering the sale of the SharesShares to the Investors, to the Company will cooperate with you the Placement Agents and their counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Placement Agents may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail The Company will apply the net proceeds from the offering and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) sale of the Act, and to advise you Shares in writing when such statement has been so made availablethe manner set forth in the Prospectus under the caption “Use of Proceeds.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.”
(i) To The Company will use its best efforts to list for quotation ensure that the Shares are listed or quoted on the Nasdaq National NASDAQ Global Market and to maintain at the listing time of the Shares on the Nasdaq National Market for a period of three years after the date of this AgreementClosing.
(j) To use its reasonable best efforts The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to do and perform all things required cause or necessary result in, or which will constitute, stabilization of the price of the Shares to be done and performed under this Agreement by facilitate the Company prior to the Closing Date sale or resale of any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach of the Underwriters as follows:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements The Company will prepare a supplement to the Prospectus or for additional information, (ii) setting forth the amount of the issuance by Notes covered thereby and the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale terms thereof not otherwise specified in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form price at which the Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and substance of which shall be satisfactory to youreallowances, if any, and to file such other information as the Prospectus Underwriters and the Company deem appropriate in such form connection with the Commission within offering of the applicable period specified in Notes, and the Company will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act; during , but the period specified in Section 5(d) below, Company will not to file any further amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus, unless it shall first have delivered copies of such amendments or supplements to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall have reasonably objected thereto promptly after receipt thereof; the Company will immediately advise the Underwriters or the Underwriters' counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement has become or will become effective and not (ii) of any order or communication suspending or preventing, or threatening to make suspend or prevent, the offer and sale of the Notes or of any amendment proceedings or supplement examinations that may lead to such an order or communication, whether by or of the Prospectus of which you shall not previously have been advised SEC or to which you shall reasonably object after being so advised; providedany authority administering any state securities or Blue Sky law, that as soon as the Company shall have is advised thereof, and will use its best efforts to prevent the right to make such further amendments as are required by law to be made and shall forthwith notify you issuance of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement order or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, communication and to use obtain as soon as possible its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivelifting, if issued.
(db) Prior If, at any time when the Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Notes is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of under the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)Act, any event shall occur or condition shall exist occurs as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Act or the Rules and Regulations, forthwith to the Company promptly will notify the Representative of such event and will promptly prepare and file with the Commission SEC, at its own expense, an appropriate amendment or supplement to such Prospectus that will correct such statement or omission or an amendment that will effect such compliance. Neither the Prospectus so that Representative's consent to, nor the statements Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.
(c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Prospectus, and all amendments and supplements to such documents relating to the Notes, in each case in such quantities as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer Underwriters may reasonably request request.
(e) The Company will cooperate with the Underwriters in writinglisting the Class A Notes on the Irish Stock Exchange.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you and counsel for the Underwriters at the expense of the Sellers and with their counsel in connection with the registration qualification of, or qualification procurement of exemptions with respect to, the Shares Notes for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration qualification or qualificationexemptions; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the SharesNotes, in any jurisdiction in which where it is not now so subject.
(g) The Company consents to the use, in accordance with the securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriters and by dealers, of the Prospectus furnished by the Company.
(h) To mail the extent, if any, that the rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of documents or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Representative terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be applied substantially in accordance with the description set forth in the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the retirement of the Notes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the ▇▇▇▇t Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust St▇▇▇▇t Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents
(o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company.
(p) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders as soon as practicable securityholders an earnings statement covering a period of at least 12 months beginning after the twelvelater of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-month period ending December 31effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, 2000 that shall which will satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (SLC Student Loan Trust 2005-1)
Agreements of the Company. The Company covenants and agrees with youthe several Underwriters as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Applicable Time or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement, the Base Prospectus or the Prospectus, unless a copy thereof shall first have been submitted to the Representative within a reasonable period of time prior to the filing thereof and the Representative shall not have objected thereto in good faith.
(b) Prior to the completion of the distribution of the Share by the Underwriters, the Company will notify the Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the suspension of qualification of Base Prospectus, any Preliminary Prospectus, the Shares for offering Prospectus Supplement, the Prospectus or sale in any jurisdiction, Issuer Free Writing Prospectus or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effectivethreat thereof, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in the third sentence of Section 5(d4(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when in which they are made, not misleading, and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any Preliminary Prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to each Representative, without charge, an electronic copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations), the Company will deliver to each of the Underwriters, without charge, as many written and electronic copies of each Preliminary Prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each Preliminary Prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to a purchaserthe Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or supplement amendment to the Prospectus so that as the statements in Representative may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as so amended a result of which such Issuer Free Writing Prospectus conflicted or supplementedwould conflict with the information contained in the Registration Statement, will not the Pricing 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 when it is so deliveredprevailing at that subsequent time, be not misleading, the Company will promptly notify the Representative and, if requested by the Representative, will promptly amend or so that the supplement, at its own expense, such Issuer Free Writing Prospectus will comply with applicable lawto eliminate or correct such conflict, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter untrue statement or dealer may reasonably request in writingomission.
(f) Prior to any public offering of the Shares, to the Company will cooperate with you the Representative and counsel for to the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state or foreign securities or Blue Sky laws of such jurisdictions as you the Representative may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail The Company will, so long as required under the Rules and make generally available Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an earnings annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the twelve-month period ending December 31, 2000 Effective Date that shall will satisfy the provisions of Section 11(a) of the ActAct (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, and to advise you in writing when such statement has been so made available.
(h) During “Availability Date” means the period of three years 45th day after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities end of the Company fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is listed and the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestfourth fiscal quarter.
(i) To Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each Preliminary Prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any Preliminary Prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use its best efforts to list for quotation in connection with the offering and sale of the Shares on by the Nasdaq National Market and Underwriters or by dealers to maintain whom Shares may be sold, (iv) the listing of the Shares on Nasdaq, (v) any filings required to be made in connection with clearance of the Nasdaq National Market offering of the Shares with FINRA (including the fees, disbursements and other charges of counsel for a period the Underwriters in connection therewith), (vi) the registration or qualification of three years after the date Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (vii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (viii) the transfer agent for the Shares, (ix) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings) , and (x) all other costs and expenses of the Underwriters incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriters (in addition to those set forth in clauses (v) and (vi)); provided, however, that in no event under this Agreementclause (x) shall the Company be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $25,000 in the aggregate.
(j) To use its reasonable best efforts The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to do and perform all things required cause or necessary result in, or that will constitute, stabilization of the price of the shares of Common Stock to be done and performed under this Agreement by facilitate the Company prior to the Closing Date sale or resale of any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If The Company will apply the Registration Statement at net proceeds from the time offering and sale of the effectiveness Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of this Agreement does not cover all Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the SharesProspectus, without the prior written consent of the Representative, the Company will not (1) offer, sell, contract to file a Rule 462(b) Registration Statement with sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Commission registering Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock option plans disclosed in the Shares not so covered Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in compliance with Rule 462(b) by 10:00 P.M., New York City time, each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
(m) The Company will cause each of its executive officers and directors to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of the Representative, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in Schedule III hereto.
Appears in 1 contract
Sources: Underwriting Agreement (Vicor Corp)
Agreements of the Company. The Company agrees with youthe Underwriters as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Effective Date or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by any Underwriter or any dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172), file any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to the filing thereof and the Representatives shall not have objected thereto in good faith.
(b) The Company will notify the Representatives promptly, and will confirm such advice in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, (2) of the receipt of any comments from or any request by the Commission for amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus or amendments or supplements to the Prospectus or for additional information, (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in Statement, any jurisdiction, notice objecting to its use or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of the happening of any event during the period referred to mentioned in the second sentence of Section 5(d5(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading, and (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any Preliminary Prospectus or the Prospectus. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment.
(bc) To The Company will furnish to you five photocopies the Representatives, without charge, four copies of the signed copies of the Registration Statement as first filed with the Commission and of each any post-effective amendment to itthereto, including all exhibitsfinancial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) and will furnish to you and the Representatives, without charge, for transmittal to each Underwriter designated by you such number of conformed the other Underwriters, copies of the Registration Statement as so filed and of each any post-effective amendment to itthereto, including financial statements and schedules but without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) The Company will deliver to 10:00 A.M.each of the Underwriters, New York City timewithout charge, on as many copies of the first business day after Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto, as the date Representatives may reasonably request. The Company consents to the use of this Agreement the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto by the several Underwriters and from time by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter for such period as in during which the opinion of counsel for the Underwriters a prospectus Prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, therewith (including in circumstances where such requirement may be satisfied pursuant to furnish in New York City to each Underwriter and any dealer as many copies Rule 172 of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) Act). If during the such period specified in Section 5(d), of time any event shall occur which in the judgment of the Company or condition counsel to the Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, subject to the provisions of Section 5(a) hereof, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriters, without charge, such number of copies thereof as the Representatives may reasonably request. The Company shall exist not file any document under the Exchange Act before the termination of the offering of the Shares by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus which is not approved by the Representatives after reasonable notice thereof. If there occurs an event or development as a result of which, in which the opinion General Disclosure Package would include an untrue statement of counsel for the Underwriters, it becomes a material fact or would omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen prevailing, not misleading, or if, in the opinion Company will notify promptly the Representatives so that any use of counsel for the Underwriters, General Disclosure Package may cease until it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Shares, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not in use or file any such document to which the light of Representatives or counsel to the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may Underwriters shall reasonably request in writingobject.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you the Representatives and counsel for to the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares and the Preferred Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Representatives may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail During the period of five years commencing on the date hereof, the Company will furnish to each of the Representatives and each other Underwriter who may so request copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to each of the Representatives and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its stockholders securities as soon as may be practicable an but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, a consolidated earnings statement covering (which need not be audited but shall be in reasonable detail), with respect to the twelve-month Primary Entities, for a period ending December 31of 12 months commencing after the Effective Date, 2000 that shall satisfy and satisfying the provisions of Section 11(a) of the Act, Act (including Rule 158 thereunder) and will file such earnings statement as an exhibit to advise you in writing when such statement has been so made available.
(hthe next periodic report required by Section 13 or 15(d) During of the Exchange Act covering the period of three years after when the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company earnings statement is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestreleased.
(i) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 9 hereof or by notice given by you terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) reasonably incurred by you in connection herewith.
(j) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of any of the Shares in violation of the Act.
(k) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(l) The Company will use its best efforts to list for quotation have the Shares listed, subject to notice of issuance, on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this AgreementNew York Stock Exchange.
(jm) To use its reasonable best efforts to do The Company represents and perform all things required or necessary to be done agrees that, unless it obtains the prior written consent of the Representatives, and performed under this Agreement by each Underwriter, severally and not jointly, represents and agrees with the Company prior to the Closing Date that, unless it has obtained or any Option Closing Datewill obtain, as the case may be, the prior written consent of the Company and to satisfy all conditions precedent the Representatives, it has not made and will not make any offer relating to the delivery Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Shares.
(kAct) If required to be filed by the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement Company with the Commission registering or retained by the Company under Rule 433 of the Act. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (y) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (z) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an Issuer Free Writing Prospectus as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Shares not so covered or their offering or (ii) information that describes the final terms of the Shares or their offering and that is included in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date Final Term Sheet of this Agreementthe Company contemplated in Section 5(e).
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of four (4) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.to
Appears in 1 contract
Sources: Underwriting Agreement (Lantronix)
Agreements of the Company. The Company covenants and agrees with youthe Underwriter that:
(a) To The Company will endeavor to cause the Registration Statement to become effective and will advise you the Underwriter promptly and, if requested by youthe Underwriter, to will confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment to it becomes effective, and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments Prospectus or supplements to the any Preliminary Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, and (iv) if within the Company is required period of time referred to file a Rule 462(bin paragraph (f) Registration Statement after the effectiveness of this Agreementbelow, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein not misleadingmisleading or the necessity to amend or supplement the Prospectus to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.moment. If the Company elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Underwriter with copies of the form of Rule 434 Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule
(b) To furnish to you five photocopies of signed copies of If, at the time that the Registration Statement as first filed becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Act, then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission Commission, in accordance with Rule 430A and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further copies of an amended Prospectus, or, if required by Rule 430A, a post- effective amendment to the Registration Statement and (including an amended Prospectus) containing all information so omitted.
(c) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Option Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you the Underwriter shall not previously have been advised or to which you the Underwriter shall reasonably object promptly after being so advised; providedadvised reasonably object in writing.
(e) Prior to the effective date of the Registration Statement, that the Company shall has delivered or will deliver to the Underwriter, without charge, copies of each form of Preliminary Prospectus in such quantities as you have reasonably requested or may hereafter reasonably request. The Company consents to the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; anduse, during such period, to prepare and file in accordance with the Commissionprovisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by dealers, promptly upon your reasonable requestprior to the effective date of the Registration Statement, any amendment to of each Preliminary Prospectus so furnished by the Company.
(f) On the effective date of the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for during such period as in the opinion of counsel for the Underwriters Underwriter a prospectus relating to the Shares is required by law to be delivered in connection with offers or sales of the Shares by an the Underwriter or a dealer, the Company will deliver to furnish in New York City to each the Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail Prospectus and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.each
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of four signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be reasonably satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City timetime or as soon as practicable thereafter, on the first business day after the date of this Agreement the Registration Statement is declared effective and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)) above, any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31September 30, 2000 2001 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as practicable copies of all reports or other publicly available communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Sellers' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and reasonable disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholder hereunder for which provision is not otherwise made in this Section. The provisions of this Section shall not supersede or otherwise affect any agreement that the Company and the Selling Stockholder may otherwise have for allocation of such expenses among themselves.
(j) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(m) That in connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. DLJ will notify the Company as to which Participants will need to be so restricted. The Company will direct the removal of such transfer restrictions upon the expiration of such period of time.
(n) To pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
Appears in 1 contract
Sources: Underwriting Agreement (Viasource Communications Inc)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of six (6) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the judgment of the Company or in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such U.S. jurisdictions, or the securities laws of such other jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders shareholders as soon as practicable an earnings statement covering the twelve-month period ending December 31September 30, 2000 2001 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock Ordinary Shares or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries Radview Software, Inc. (the "U.S. Subsidiary") as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters and the issuance of the Shares, including any stamp duty, transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto, such fees of counsel for the Underwriters not to exceed $5,000 in the aggregate), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc. ("NASD"), (vi) all costs and expenses of the Underwriters, incurred in connection with the Directed Shares Program, (vii) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A (or other applicable form) relating to the Ordinary Shares and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (viii) the cost of printing certificates representing the Shares, (ix) the costs and charges of any transfer agent, registrar and/or depositary, and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as provided in this Section and Section 7 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes (other than any imposed by the State of Israel including, without limitation, stamp tax payable upon issuance of the Shares) on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make.
(j) To use its reasonable best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(m) That in connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. DLJ will notify the Company as to which Participants will need to be so restricted. The Company will direct the removal or such transfer restrictions upon the expiration of such period of time.
(n) To pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program (other than fees of U.S. counsel for the Underwriters) and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with DLJ that the Company will comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach of you as ------------------------- follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Notes may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post- effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares Notes for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you you, without charge (i) five photocopies of signed copies of the Registration Statement registration statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits to the registration statement, and to furnish to you and each Underwriter designated by you (ii) such number of conformed copies of the Registration Statement registration statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may reasonably request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) five copies of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectiveobject.
(de) Prior to 10:00 A.M.the execution and delivery of this Agreement, New York City timethe Company has delivered to you, on without charge, in such quantities as you have requested, copies of each form of the first business day after Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by you and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a dealer, to furnish in New York City the Company will expeditiously deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer you may reasonably request.
. The Company consents to the use of the Prospectus (eand of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or supplement to such document), and will expeditiously furnish to the Prospectus so Underwriters and dealers a reasonable number of copies thereof. In the event that the statements in Company and you agree that the Prospectus, as so Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with your counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Notes for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the SharesNotes, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made availableRule 158 thereunder.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed Commission, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by you because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including reasonable fees and expenses of your counsel) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Notes substantially in accordance with the description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) The Company will not sell, contract to sell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or grant any options or warrants to purchase Common Stock, for a period of 120 days after the date hereof, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., except for sales to the Underwriters pursuant to this Agreement and issuances of Common Stock upon conversion of the Notes. The foregoing sentence shall not apply to (i) To the issuance of shares of Common Stock upon exercise of options outstanding under the Company's 1994 Stock Option Plan, as amended and restated (the "1994 Plan") or the Company's 1995 Non-Employee Director Stock Option Plan (the "1995 Plan") and (ii) the grant of options to purchase shares of Common Stock under the 1994 Plan or the 1995 Plan in an aggregate amount not to exceed 1,000,000 shares.
(n) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by the officers, directors and stockholders listed on Schedule II hereto.
(o) Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Notes.
(p) The Company will use its best efforts to list for quotation have the Shares on Notes and the Nasdaq National Market and to maintain the listing shares of Common Stock issuable upon conversion of the Shares on the Nasdaq National Market for a period Notes listed, subject to notice of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City timeissuance, on the date of this AgreementNew York Stock Exchange on or before the Closing Date.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you The Amended Offering Statement has become qualified, and the Company will file the Final Amended Offering Circular, subject to the prior approval of the Selling Agent, pursuant to Rule 253 and Regulation A, within the prescribed time period and will provide a copy of such filing to the Selling Agent promptly andfollowing such filing.
(b) The Company will not, during such period as the Final Amended Offering Circular would be required by law to be delivered in connection with sales of the Shares by the Selling Agent or any Dealer in connection with the Offering contemplated by this Agreement (whether physically or through compliance with Rules 251 and 254 under the Act or any similar rule(s)), file any amendment or supplement to the Amended Offering Statement or the Final Amended Offering Circular unless a copy thereof shall first have been submitted to the Selling Agent within a reasonable period of time prior to the filing thereof and the Selling Agent shall not have reasonably objected thereto in good faith.
(c) The Company will notify the Selling Agent promptly, and will, if requested by yourequested, to confirm such advice notification in writing, : (i1) when any amendment to the Amended Offering Statement is filed; (2) of any request by the Commission for any amendments to the Registration Amended Offering Statement or amendments any amendment or supplements to the Prospectus Final Amended Offering Circular or for additional information, ; (ii3) of the issuance by the Commission of any stop order preventing or suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering Amended Offering Statement or sale in any jurisdictionthe Final Amended Offering Circular, or the initiation of any proceeding proceedings for such purposes, that purpose or the threat thereof; (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during that in the period referred to in Section 5(d) below which judgment of the Company makes any statement of a material fact made in the Registration Statement Amended Offering Statement, the Preliminary Amended Offering Circular, the Pricing Disclosure Materials or the Prospectus Final Amended Offering Circular untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement Amended Offering Statement, the Pricing Disclosure Materials or the Prospectus Final Amended Offering Circular in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification or exemption from registration of the Shares for offer and sale in any jurisdiction. If at any time the Commission shall issue any stop order suspending the effectiveness qualification of the Registration StatementAmended Offering Statement in connection with the Offering contemplated hereby or in connection with sales of Shares pursuant to market making activities by the Selling Agent, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish moment. If the Company has omitted any information from the Amended Offering Statement, it will use its best efforts to you five photocopies comply with the provisions of signed copies of the Registration Statement as first filed and make all requisite filings with the Commission pursuant to Regulation A, the Act and of each amendment to it, including all exhibits, the Rules and Regulations and to furnish to you and each Underwriter designated by you notify the Selling Agent promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when the Final Amended Offering Circular relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Shares is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Final Amended Offering Circular, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Selling Agent, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Amended Offering Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Selling Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Selling Agent, at any time to amend or supplement the Prospectus Final Amended Offering Circular or the Amended Offering Statement to comply with applicable lawthe Act or the Rules and Regulations, forthwith to the Company will promptly notify the Selling Agent and will promptly prepare and file with the Commission Commission, at the Company's expense, an appropriate amendment to the Amended Offering Statement and/or an amendment or supplement to the Prospectus so Final Amended Offering Circular that corrects such statement and/or omission or effects such compliance and will deliver to the statements in Selling Agent, without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Selling Agent may reasonably request. The Company consents to the light use of the circumstances when it is so delivered, be misleading, Final Amended Offering Circular or so that any amendment or supplement thereto by the Prospectus will comply with applicable lawSelling Agent, and the Selling Agent agree to provide to each Investor, prior to the Closing, a copy of the Final Amended Offering Circular and any amendments or supplements thereto.
(e) The Company will furnish to the Selling Agent and their counsel, upon request and without charge (i) one conformed copy of the Amended Offering Statement as originally filed with the Commission and each Underwriter amendment thereto, including financial statements and schedules, and all exhibits thereto, and (ii) so long as an offering circular relating to any dealer the Shares is required to be delivered under the Act or the Rules and Regulations, as many copies thereof of each Preliminary Amended Offering Circular or the Final Amended Offering Circular or any amendment or supplement thereto as such Underwriter or dealer the Selling Agent may reasonably request in writinga typeset electronic version.
(f) The Company will use its commercially reasonable efforts to ensure that the Shares are listed for trading on the NYSE American upon approval of the listing application that the Company intends to file with the NYSE American.
(g) The Company has caused each of its directors, executive officers and certain stockholders to enter into a pooling agreement (the "Pooling Agreement"), with the Company, which imposes contractual resale restrictions on the "pooled securities" as set forth in the respective Pooling Agreement filed as Exhibits 6.39 and 6.40 to the Amended Offering Statement.
(h) Prior to any public offering the sale of the SharesShares to the Investors, to the Company will cooperate with you the Selling Agent and its counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification qualification, or exemption therefrom, of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Selling Agent may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation The Company will apply the Shares on net proceeds from the Nasdaq National Market offer and to maintain the listing sale of the Shares on substantially in the Nasdaq National Market for a period manner set forth in the Final Amended Offering Circular under the caption "Use of three years after the date of this AgreementProceeds."
(j) To use its reasonable best efforts The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to do and perform all things required cause or necessary result in, or which will constitute, stabilization of the price of any of the Shares to be done and performed under this Agreement by facilitate the Company prior to the Closing Date sale or resale of any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: Selling Agency Agreement (Starfighters Space, Inc.)
Agreements of the Company. The Company covenants and agrees with youthe several Underwriters as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Applicable Time or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement, the Base Prospectus or the Prospectus, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to the filing thereof and the Representatives shall not have objected thereto in good faith.
(b) The Company will notify the Representatives promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the suspension of qualification of Base Prospectus, any preliminary prospectus, the Shares for offering Prospectus Supplement, the Prospectus or sale in any jurisdiction, Issuer Free Writing Prospectus or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effectivethreat thereof, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in the third sentence of Section 5(d4(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when in which they are made, not misleading, and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representatives promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to each Representative, without charge, one signed copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations), the Company will deliver to each of the Underwriters, without charge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus and each Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to a purchaserthe Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or supplement amendment to the Prospectus so that as the statements in Representatives may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representatives after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as so amended a result of which such Issuer Free Writing Prospectus conflicted or supplementedwould conflict with the information contained in the Registration Statement, will not the Pricing 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 when it is so deliveredprevailing at that subsequent time, be not misleading, the Company will promptly notify ▇▇▇▇▇▇▇ & Company, LLC and, if requested by ▇▇▇▇▇▇▇ & Company, LLC, will promptly amend or so that the supplement, at its own expense, such Issuer Free Writing Prospectus will comply with applicable lawto eliminate or correct such conflict, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter untrue statement or dealer may reasonably request in writingomission.
(f) Prior to any public offering of the Shares, to the Company will cooperate with you the Representatives and counsel for to the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Representatives may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail The Company will, so long as required under the Rules and make generally available Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an earnings annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the twelve-month period ending December 31, 2000 Effective Date that shall will satisfy the provisions of Section 11(a) of the ActAct (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, and to advise you in writing when such statement has been so made available.
(h) During “Availability Date” means the period of three years 45th day after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities end of the Company fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is listed and the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestfourth fiscal quarter.
(i) To Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Representatives all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, Pricing Prospectus, Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement thereto, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, the Agreement Among Underwriters, any Selected Dealer Agreements, any Underwriters’ Questionnaires, any Underwriters’ Powers of Attorney, and any invitation letters to prospective Underwriters, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use its best efforts to list for quotation in connection with the offering and sale of the Shares on by the Nasdaq National Market and Underwriters or by dealers to maintain whom Shares may be sold, (v) the listing of the Shares on the Nasdaq National Market NGM, (vi) any filings required to be made by the Underwriters with the NASD, and the reasonable fees, disbursements and other charges of counsel for a period the Underwriters in connection therewith, (vii) the registration or qualification of three years after the date Shares for offer and sale under the securities or Blue Sky laws of this Agreementsuch jurisdictions designated pursuant to Section 4(f), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided herein) and of the Accountants, (ix) the transfer agent for the Shares, and (x) any travel expenses of the Company’s officers, directors and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Shares.
(j) To use its reasonable best efforts The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to do and perform all things required cause or necessary result in, or that will constitute, stabilization of the price of the shares of Common Stock to be done and performed under this Agreement by facilitate the Company prior to the Closing Date sale or resale of any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If The Company will apply the Registration Statement at net proceeds from the time offering and sale of the effectiveness Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of this Agreement does not cover all Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the SharesProspectus, without the prior written consent of ▇▇▇▇▇▇▇ & Company, LLC, the Company will not (1) offer, sell, contract to file a Rule 462(b) Registration Statement with sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Commission registering Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock option plans disclosed in the Shares not so covered Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in compliance with Rule 462(b) by 10:00 P.M., New York City time, each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 4(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless ▇▇▇▇▇▇▇ & Company, LLC waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of ▇▇▇▇▇▇▇ & Company, LLC, grant options to purchase shares of Common Stock at a price less than the market price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of ▇▇▇▇▇▇▇ & Company, LLC.
(n) The Company will use its best efforts to cause each of its officers and directors designated by the Representatives to enter into lock-up agreements with the Representatives substantially in the form set forth in Schedule III hereto.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Underwriters as follows:
(a) To advise you The Company will cause the Prospectus Supplement to be filed as contemplated by Section 4(a) hereof (but only if the Underwriters have not reasonably objected thereto by notice to the Company after having been furnished a copy within a reasonable time prior to filing) and will notify the Underwriters promptly andof such filing. The Company will not during such period as the Prospectus is required by law to be delivered in connection with sales of the Securities by any Underwriter or dealer (the "Prospectus Delivery Period"), if requested by youfile any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Underwriters within a reasonable period of time prior to the filing thereof and the Underwriters shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the Registration Statement to remain effective through the completion of the Underwriters' distribution of the Securities, and will notify the Underwriters promptly, and will confirm such advice in writing, (i) of the preparation and filing (subject to Section 5(a)) of any post-effective amendment and when any such post-effective amendment to the Registration Statement becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof, (iv) of the suspension of the qualification or registration of the Shares Securities for offering or sale in any jurisdiction, or of the initiation or threat of any proceeding for any such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and purpose; (v) of the happening of any event during the period referred to Prospectus Delivery Period that in Section 5(d) below which the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleadingmisleading and (vi) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission or any jurisdiction shall issue threaten to issue, or shall issue, any stop order suspending the effectiveness of the Registration StatementStatement or suspending the qualification or registration of the Securities for sale in any jurisdiction, the Company will use its make every reasonable best efforts effort to prevent the issuance of such order and, if such an order should be issued, to obtain the withdrawal or lifting of such order at the earliest possible timemoment. The Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and to notify the Underwriters promptly of all such filings.
(bc) To The Company will furnish to you five photocopies of the Underwriters without charge two signed copies of the Registration Statement as first filed with the Commission and of each amendment to itany post-effective amendments thereto, including all exhibitsfinancial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to furnish to you and each Underwriter designated be incorporated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare reference into the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective).
(d) Prior to 10:00 A.M.The Company will comply with all requirements imposed upon it by the Act, New York City timethe 1933 Act Rules and Regulations, on the first business day after Exchange Act, the date of this Agreement Exchange Act Rules and Regulations and the TIA, as from time to time thereafter for such period in force, so far as in necessary to permit the opinion continuance of counsel for sales of, or dealings in, the Underwriters a prospectus is required Securities as contemplated by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter the provisions hereof and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) The Company will comply with all the provisions of any undertakings contained, or incorporated by reference, in the Registration Statement.
(f) During the Prospectus Delivery Period, the Company will promptly furnish to the Underwriters, without charge, as many copies of each preliminary prospectus, the Prospectus (containing the Prospectus Supplement) and any amendment or supplement thereto as the Underwriters may from time to time reasonably request. The Company consents to the use of the Prospectus, as amended or supplemented from time to time, by the Underwriters and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and, thereafter, during the Prospectus Delivery Period. If during the period specified in Section 5(d), Prospectus Delivery Period any event shall occur or condition shall exist as a result of which, which in the opinion judgment of the Company or counsel for to the Underwriters, it becomes necessary to amend or supplement Underwriters should be set forth in the Prospectus in order to make the statements any statement therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which it was made, not misleading, or if, in the reasonable opinion of counsel for to the Underwriters, it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment thereto. Except as required by the Exchange Act or supplement to the Exchange Act Rules and Regulations, the Company shall not file any document under the Exchange Act before the termination of the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, Delivery Period if such document would be misleading, or so that deemed to be incorporated by reference into the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may which the Underwriters reasonably request in writingobject.
(fg) Prior to any public offering of the SharesSecurities, to the Company will cooperate with you and counsel for the Underwriters at the expense of the Sellers and their counsel in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue within the United States that require such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as Underwriters may be necessary in order to effect such registration or qualificationreasonably request; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders as soon as practicable practicable, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy (in form complying with the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities Rule 158 of the Company is listed Rules and such other publicly available information concerning Regulations) covering a twelve-month period beginning not later than the Company and its subsidiaries first day of the Company's fiscal quarter next following the "effective date" (as you may reasonably requestdefined in said Rule 158) of the Registration Statement.
(i) To use its best efforts Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all fees, costs and expenses incident to list for quotation the Shares on the Nasdaq National Market and to maintain the listing performance of the Shares on obligations of the Nasdaq National Market for a period Company under this Agreement, including, but not limited to, fees, costs and expenses of three years after or relating to (i) the date preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Prospectus and any amendment or supplement to the Registration Statement or the Prospectus and any other filing made by the Company with the Commission, (ii) the preparation and delivery of certificates representing the Securities, (iii) the printing of this AgreementAgreement and any Dealer Agreements, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be reasonably requested for use in connection with the offering and sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (v) the filing fees and the fees and expenses of counsel for the Underwriters in connection with any filings required to be made with the NASD; (vi) the reasonable fees, disbursements and other charges of counsel to the Underwriters in connection with, and the preparation of, preliminary, supplemental and final Blue Sky memoranda, (vii) counsel (including local and special counsel) to the Company and any surveyors, engineers, appraisers, photographers, accountants and other professionals engaged by the Company, (viii) the hotel, airfare and other travel arrangements of the Company's employees in connection with preparation of the Registration Statement and Prospectus and in connection with any "road show" or other presentation to potential investors, (ix) the Accountants and any other accountants engaged by the Company in connection with the offering of the Securities, (x) the Trustee under the Indenture, (xi) Mood▇'▇ ▇▇▇estors Service, Inc. ("Moody's") and Standard and Poor's Rating Services ("S&P" and, together with Moody's, the "Rating Agencies") in connection with the rating of the Securities at the request of the Company.
(j) To use its reasonable best efforts The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to do cause or result in, or which will constitute, stabilization of the price of the Securities to facilitate the sale or resale of any of the Securities.
(k) The Company will apply the net proceeds from the offering and perform all things required or necessary sale of the Securities to be done and performed under this Agreement sold by the Company in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(l) Unless the Board of Directors of the Company determines in its reasonable business judgment and pursuant the Charter that continued qualification as a "real estate investment trust" under the Code is not in the Company's best interest, the Company will use its best efforts to, and will continue to meet the requirements to, qualify as a "real estate investment trust."
(m) The Company will execute and deliver the Supplemental Indenture on or prior to the Closing Date or any Option Closing Dateas authorized by the Board of Directors, which shall designate the Securities as the case may be, debt securities to be offered and to satisfy all conditions precedent to their terms and provisions in accordance with the delivery provisions of the SharesIndenture; and the Company shall perform its obligations under the Indenture.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (Avalon Bay Communities Inc)
Agreements of the Company. The Company agrees with youthe several ------------------------- Underwriters as follows:
(ai) To advise If the Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly and, if requested by you, of the time when the Registration Statement or any post-effective amendment to confirm such advice in writing, the Registration Statement has become effective or any supplement to the Prospectus (iincluding 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 amendments any amendment or supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will prepare and file a Prospectus (or term sheet within the meaning of Rule 434 of the Rules and Regulations) containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b); the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) that, in your opinion, may be necessary or for additional information, advisable in connection with the distribution of the Notes by the Underwriters; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to which you shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or Statement, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(iii) when Within the time during which a prospectus (including any amendment term sheet within the meaning of Rule 434 of the Rules and Regulations) relating to the Registration Statement becomes effective, (iv) if the Company Notes is required to file a Rule 462(b) Registration Statement after be delivered under the effectiveness Act, the Company will comply as far as it is able with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of this Agreement, when sales of or dealings in the Rule 462(b) Registration Statement has become effective Notes as contemplated by the provisions hereof and (v) of the happening of Prospectus. If during such period any event during occurs as a result of which the period referred to in Section 5(d) below which makes any Prospectus would include an untrue statement of a material fact made 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 untrue or which requires any additions to or changes in comply with the Act, the Company will promptly notify you and will amend the Registration Statement or supplement the Prospectus in order to make (at the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness expense of the Registration Statement, the Company will use its reasonable best efforts Company) so as to obtain the withdrawal correct such statement or lifting of omission or effect such order at the earliest possible timecompliance.
(biv) To The Company will furnish to you five photocopies each of the Underwriters and their counsel, without charge, one signed copies copy of the Registration Statement as first filed with the Commission and of each amendment to itthereto, including all exhibitsexhibits thereto and documents incorporated therein by reference, and to will also furnish to you and each Underwriter designated by you of the Underwriters, without charge, such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, thereto as you each of the Underwriters may reasonably request.
(cv) To prepare Prior to the Prospectuseffective date of the Registration Statement, the Company will have delivered or will deliver to each Underwriter, without charge, copies of each form and substance of which shall be satisfactory to you, and to file the Prospectus preliminary prospectus in such form with quantities as such Underwriter has reasonably requested or may hereafter reasonably request for the Commission within the applicable period specified in Rule 424(b) under purposes contemplated by the Act; during .
(vi) On the period specified in Section 5(d) below, not to file any further amendment to effective date of the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for during such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with offers or sales of the Notes by an Underwriter or a dealer, to furnish in New York City the Company will deliver to each Underwriter and any dealer dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer they may reasonably request.
(e) If during the period specified in Section 5(d). During such period, if any event shall occur occurs which in the judgment of the Company, or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to ensure that no part of the Prospectus includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances when at the time the Prospectus is delivered to a purchaser, not misleading, or ifthe Company will forthwith prepare, in the opinion of counsel for submit to the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Underwriters to the Company) to whom Notes have been sold by the Underwriters or to other dealers upon request, an appropriate amendment or supplement supplement, as appropriate, to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not comply with the standards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the light preliminary Blue Sky memorandum in which the Notes are lawfully offered by the several Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering or sale of the circumstances when it is so delivered, be misleading, or so that Notes and for such period of time thereafter as the Prospectus will comply with applicable lawis required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto) more than nine months after the first date upon which the Notes are offered to the public, and to the Company will, upon the request of the Underwriters but at the expense of such Underwriter, furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingwith reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(fvii) Prior to any public offering of the Shares, to The Company will cooperate with you the Underwriters and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Notes for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated (w) to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or qualified, (x) to file any general consent to service of process, (y) take any action that would subject it to general consent income taxation in any jurisdiction where it is not so qualified or (z) to service take any action to amend its Articles of process Incorporation in order to make the Company's securities eligible for registration or taxation other than as to matters and transactions relating qualification in any state.
(viii) The Company will make generally available to the Prospectusholders of Notes an earnings statement of the Company and its subsidiaries, which need not be audited, as soon as practicable but not later than 18 months after the effective date of the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made availablethe rules and regulations of the Commission thereunder (including Rule 158).
(hix) During the For a period of three five years after the date of this Agreement, to :
(A) the Company will furnish to you upon your written request the Underwriters (1) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders, (2) copies of all annual, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and any amendment thereto or such other communications furnished similar forms as may be designated by the Commission or required to be filed by the record holders Company pursuant to Sections 13, 14 and 15 of Common Stock or the Exchange Act, which the Company agrees to timely file with the Commission for so long as may be required, (3) a copy of each report furnished to or filed with any securities exchange or the Commission National Market of the National Association of Securities Dealers Automated Quotation System ("Nasdaq National Market"), (4) if the Company or any national securities exchange on which Subsidiary affects a Securitization (as such term is defined in the Indenture), all periodic master servicing reports for each Securitization Trust (as such term is defined in the Indenture) related to any class of securities of the Company is listed such Securitization and (5) from time to time, such other publicly available information concerning the Company and its subsidiaries as you the Underwriters may reasonably request; and
(B) if at any time during such five-year period, the Company shall cease filing with the Commission the annual, quarterly reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (A) above, the Company will forward to the Underwriters (1) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, audited by independent public accountants, and (2) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be audited) of income and retained earnings of the Company for such period, which shall also be made publicly available. If and so long as the Company shall have any subsidiaries, the financial statements referred to above shall be consolidated to the extent the accounts of the Company and such subsidiaries are consolidated, and separate financial statements shall be furnished for each significant subsidiary, as defined in Regulation S-X of the Commission, whose accounts are not so consolidated.
(ix) To use Prior to the Closing Date, the Company will issue no press release or other public communication directly or indirectly and hold no press conference with respect to the Company or any subsidiary or this offering, without the Underwriters' prior written consent.
(xi) Company will pay, or reimburse if paid by the Underwriters, whether or not the transactions contemplated hereby are consummated or this Agreement is prevented from becoming effective under the provisions of Section 11 hereof or is terminated, all costs and expenses incident to the performance by it of its best efforts obligations under this Agreement including, without limiting the generality of the foregoing, (1) typesetting, printing, duplicating, and filing (and all preparation therefor) and distribution (including, without limitation, postage, air freight charges and charges for counting and packaging) of the original registration statement, the Registration Statement, each Preliminary Prospectus, the Prospectus, each amendment and/or supplement to list any of the foregoing, and this Agreement and other underwriting documents and the Indenture, (2) all costs of furnishing to the several Underwriters and dealers copies of the foregoing materials, (3) the registrations or qualifications referred to in paragraph (viii) above (including reasonable fees and disbursements of counsel in connection therewith) and expenses of printing and delivering to the several Underwriters copies of the preliminary and final Blue Sky memorandum, (4) the review of the terms of the public offering of the Notes by the National Association of Securities Dealers, Inc. (the "NASD") (including the filing fees paid to the NASD in connection therewith) and the reasonable fees and disbursements of counsel for quotation the Shares Underwriters in connection therewith, (5) the performance by the Company of its other obligations under this Agreement, including the fees of the Company's counsel and accountants, (6) the issuance of the Notes and the preparation and printing of the certificates representing the Notes, (7) the fees and expenses of the Trustee and any agent of the Trustee and any transfer or paying agent for the Company, (8) all travel, lodging and reasonable living expenses incurred by the Company in connection with marketing, dealer and other meetings attended by the Company and the Underwriters in marketing the Notes, (9) listing fees, if any, (10) any fees charged by security rating services for rating the Notes and (11) furnishing to the several Underwriters copies of all reports and information required by paragraph (x) above, including costs of shipping and mailing.
(xii) If the sale of the Notes provided for herein is not consummated by reason of action by the Company pursuant to Section 11 hereof which prevents this Agreement from becoming effective, or by reason of any failure, refusal or inability on the Nasdaq National Market and to maintain the listing part of the Shares Company to perform any agreement on its part to be performed, or because any other condition of the Nasdaq National Market Underwriters' obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the several Underwriters for a period all out-of-pocket disbursements (including fees and disbursements of three years after counsel) incurred by the date Underwriters in connection with their investigation, preparing to market and marketing the Notes 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.
(jxiii) To use its reasonable best efforts to do and perform all things required or necessary The Company will apply the net proceeds from the sale of the Notes to be done and performed sold by it under this Agreement by for the purposes set forth in the Prospectus under the caption "Use of Proceeds."
(xiv) The Company will comply (1) with all registration, filing and reporting requirements of the Exchange Act which may from time to time be applicable to the Company prior to and (2) all provisions of all undertakings contained in the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesRegistration Statement.
(kxv) If The Company will not incur any liability for any finder's or broker's fee or agent's commission in connection with the Registration Statement at the time of the effectiveness execution and delivery of this Agreement does not cover all or the consummation of the Sharestransactions contemplated hereby.
(xvi) The Company has not taken and will not take, directly or indirectly, any action designed to file a Rule 462(b) Registration Statement with or which might reasonably be expected to cause or result in, or which has constituted, the Commission registering stabilization or manipulation of the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on price of any security of the date Company to facilitate the sale or resale of this Agreementthe Notes.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Managers as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment or Abbreviated Registration Statement to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment or Abbreviated Registration Statement has become effective.
(b) The Company will advise you and the Sara ▇▇▇ ▇▇▇ling Stockholders promptly and, if requested by you or the Sara ▇▇▇ ▇▇▇ling Stockholders, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or amendments or supplements to the Prospectus Prospectuses or for additional information, ; (ii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or Statement; (iii) of the receipt by the Company of any notification with respect to the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, purpose; and (iv) if within the Company is required period of time referred to file a Rule 462(bin paragraph (f) Registration Statement after below, of any change in the effectiveness Company's condition (financial or other), business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.of
Appears in 1 contract
Sources: International Underwriting Agreement (Jp Foodservice Inc)
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as reasonably practicable and will advise you promptly and, if requested by you, to will confirm such advice in writing, when it receives notice that the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of its receipt of notice of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, ; (ii) of its receipt of notice of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of its becoming aware of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge, (i) three signed copies of the Registration Statement registration statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits to the registration statement, and to furnish to you and each Underwriter designated by you (ii) such number of conformed copies of the Registration Statement registration statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) three copies of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bThe Company will not (i) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; providedadvised or (ii) so long as, that in the Company shall have opinion of counsel for the right to make such further amendments as are Underwriters, a Prospectus is required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable delivered in connection with sales by any Underwriter or dealer, file any information, documents or reports pursuant to the distribution Securities Exchange Act of 1934, as amended (the "Exchange Act") without delivering a copy of such information, documents or reports to you, as representatives of the Shares by youUnderwriters, and prior to use its reasonable best efforts to cause any or concurrently with such amendment to the Registration Statement to become promptly effectivefiling.
(de) Prior to 10:00 A.M.the execution and delivery of this Agreement, New York City timethe Company has delivered to you, on without charge, in such quantities as you have requested, copies of each form of the first business day after Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a dealer, to furnish in New York City the Company will expeditiously deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may request. The Company con- sents to the Prospectususe of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as such the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer may reasonably request.
(e) dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment or supplement thereto, and will expeditiously furnish to the Prospectus so Underwriters and dealers a reasonable number of copies thereof. In the event that the statements in the ProspectusCompany and you, as so Representatives of the several Underwriters, agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed Commission, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts If this Agreement shall terminate or shall be terminated after execution pursuant to do any provisions hereof (otherwise than pursuant to the second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company or the Selling Stockholder to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and perform all things required or necessary expenses of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be done sold by it hereunder substantially in accordance with the description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and performed will advise you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not sell, contract to sell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or grant any options or warrants to purchase Common Stock, for a period of 90 days after the date of the Prospectus, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.; provided that the Company shall be permitted to (i) grant options pursuant to [ ] and to issue Common Stock upon the exercise of any option granted under such plans.
(n) The Company has furnished or will furnished to you "lock-up" letters, in form and substance satisfactory to you, signed by each of the stockholders, officers and directors of the Company set forth on Schedule II hereto.
(o) Except as stated in this Agreement by and in the Prepricing Prospectus and Prospectus, the Company prior has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or re- ▇▇▇▇ in stabilization or manipulation of the Closing Date price of the Common Stock to facilitate the sale or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery resale of the Shares.
(kp) If The Company will use its best efforts to have the Registration Statement at the time shares of the effectiveness of Common Stock which it agrees to sell under this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, approved for inclusion on the date of this AgreementNASDAQ National Market on or before the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Motorcar Parts & Accessories Inc)
Agreements of the Company. The Company agrees with youthe several Managers as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or amendments or supplements to the Prospectus Prospectuses or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during event, including the period referred filing of any information, documents or reports pursuant to in Section 5(d) below which the Exchange Act, that makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge four signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibits, exhibits to the Registration Statement and to will also furnish to you and each Underwriter designated by you you, without charge, such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may reasonably request.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bThe Company will not (i) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised; providedadvised or (ii) so long as, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the written opinion of counsel for the Underwriters Managers (a copy of which shall be delivered to the Company) a prospectus is required by law to be delivered in connection with sales by an Underwriter any Manager or a dealer, file any information, documents or reports pursuant to furnish the Exchange Act, without delivering a copy of such information, documents or reports to you, as Lead Managers for the Managers, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in New York City such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the International Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by dealers, prior to the date of the International Prospectus, of each International Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement possible and thereafter from time to time for such period as in the written opinion of counsel for the Managers an International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer, the Company will expeditiously deliver to each Underwriter Manager and any dealer each dealer, without charge, as many copies of the International Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer you may reasonably request.
. The Company consents to the use of the International Prospectus (eand of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, that in the judgment of the Company or in the written opinion of counsel for the Underwriters, it becomes necessary Managers is required to amend be set forth in the International Prospectus (as then amended or supplement the Prospectus supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the International Prospectus in order to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment or supplement thereto, and will expeditiously furnish to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light Managers and dealers a reasonable number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingthereof.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers Managers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters Managers and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders as soon as practicable an security holders a consolidated earnings statement statement, which need not be audited, covering the a twelve-month period commencing after the effective date of the Registration Statement and ending December 31not later than 15 months thereafter, 2000 that as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(all(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed NASDAQ, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(ij) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Managers because of any failure or refusal on the part of the Company to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Lead Managers for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) For a period of 180 days after the date hereof (the "Lock-up Period"), the Company will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock, except for sales to the Managers pursuant to this Agreement and the U.S. Underwriters pursuant to the U.S. Underwriting Agreement, and for options or awards of the Company's Common Stock granted in accordance with the QAD Inc. 1997 Stock Incentive Program.
(n) The Company has furnished or will furnish to you "lock-up" letters, in the form and substance satisfactory to you, signed by caused each of its current executive officers and directors and each of its stockholders previously designated by you.
(o) Except as stated in this Agreement and in the U.S. Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to list for quotation have the Shares Common Stock listed, subject to notice of issuance, on the Nasdaq National Market and to maintain concurrently with the listing effectiveness of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreementregistration statement.
(jq) To The Company will use its reasonable best efforts to do and perform all things required satisfy on or necessary to be done and performed under this Agreement by the Company prior to before the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of Managers' obligations to purchase the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe Underwriter as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Effective Date or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by the Underwriter or any dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172), file any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Underwriter within a reasonable period of time prior to the filing thereof and the Underwriter shall not have objected thereto in good faith.
(b) The Company will notify the Underwriter promptly, and will confirm such advice in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, (2) of the receipt of any comments from or any request by the Commission for amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus or amendments or supplements to the Prospectus or for additional information, (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in Statement, any jurisdiction, notice objecting to its use or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of the happening of any event during the period referred to mentioned in the second sentence of Section 5(d5(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading, and (5) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any Preliminary Prospectus or the Prospectus. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment.
(bc) To The Company will furnish to you five photocopies the Underwriter, without charge, four copies of the signed copies of the Registration Statement as first filed with the Commission and of each any post-effective amendment to itthereto, including all exhibitsfinancial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to furnish to you and each Underwriter designated be incorporated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare reference into the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective).
(d) Prior The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) The Company will deliver to 10:00 A.M.the Underwriter, New York City timewithout charge, on as many copies of the first business day after Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto, as the date Underwriter may reasonably request. The Company consents to the use of this Agreement the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto by the Underwriter and from time by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter for such period as in during which the opinion of counsel for the Underwriters a prospectus Prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, therewith (including in circumstances where such requirement may be satisfied pursuant to furnish in New York City to each Underwriter and any dealer as many copies Rule 172 of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) Act). If during the such period specified in Section 5(d), of time any event shall occur which in the judgment of the Company or condition counsel to the Underwriter should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, subject to the provisions of Section 5(a) hereof, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Underwriter, without charge, such number of copies thereof as the Underwriter may reasonably request. The Company shall exist not file any document under the Exchange Act before the termination of the offering of the Shares by the Underwriter if such document would be deemed to be incorporated by reference into the Prospectus which is not approved by the Underwriter after reasonable notice thereof. If there occurs an event or development as a result of which, in which the opinion General Disclosure Package would include an untrue statement of counsel for the Underwriters, it becomes a material fact or would omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen prevailing, not misleading, or if, in the opinion Company will notify promptly the Underwriter so that any use of counsel for the Underwriters, General Disclosure Package may cease until it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you the Underwriter and counsel for to the Underwriters at the expense of the Sellers Underwriter in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriter may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail During the period of five years commencing on the date hereof, the Company will furnish to the Underwriter copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Underwriter a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its stockholders securities as soon as may be practicable an but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, a consolidated earnings statement covering (which need not be audited but shall be in reasonable detail), with respect to the twelve-month Primary Entities, for a period ending December 31of 12 months commencing after the Effective Date, 2000 that shall satisfy and satisfying the provisions of Section 11(a) of the Act, Act (including Rule 158 thereunder) and will file such earnings statement as an exhibit to advise you in writing when such statement has been so made available.
(hthe next periodic report required by Section 13 or 15(d) During of the Exchange Act covering the period of three years after when the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company earnings statement is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestreleased.
(i) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (other than by notice given by the Underwriter terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Underwriter because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriter for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriter) reasonably incurred by the Underwriter in connection herewith.
(j) The Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the Shares to facilitate the sale or resale of any of the Shares in violation of the Act.
(k) The Company will apply the net proceeds from the offering and sale of the Shares in the manner set forth in the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(l) The Company will use its best efforts to list for quotation have the Shares listed, subject to notice of issuance, on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this AgreementNew York Stock Exchange.
(jm) To use its reasonable best efforts to do The Company represents and perform all things required or necessary to be done agrees that, unless it obtains the prior written consent of the Underwriter, and performed under this Agreement by the Underwriter, represents and agrees with the Company prior to the Closing Date that, unless it has obtained or any Option Closing Datewill obtain, as the case may be, the prior written consent of the Company, it has not made and to satisfy all conditions precedent will not make any offer relating to the delivery Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the SharesAct) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act. Any such free writing prospectus consented to by the Underwriter or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (y) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (z) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by the Underwriter of a free writing prospectus that (a) is not an Issuer Free Writing Prospectus as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Shares or their offering or (ii) information that describes the final terms of the Shares or their offering.
(kn) If During the Registration Statement at period beginning from the time date hereof and continuing to and including the date 60 days after the date of the effectiveness Prospectus, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of this Agreement does not cover all any securities of the Company that are substantially similar to the Shares, including but not limited to file a Rule 462(b) any options or warrants to purchase shares of Common Stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities (other than pursuant to the Company’s 1997 Stock Option and Incentive Plan, the Company’s 2012 Equity and Performance-Based Incentive Compensation Plan, the Company’s 2003 Stock Option and Incentive Plan and the Company’s Retirement Plan for Non-Employee Directors, upon exchange of interests in the Operating Partnership or as described in the Registration Statement with Statement, the Commission registering General Disclosure Package and the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M.Prospectus), New York City time, on without the date of this AgreementUnderwriter’s prior written consent.
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach Underwriter as follows:
(a) To advise you promptly andThe Company will not, if requested during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Units by an Underwriter or a dealer (the "Prospectus Delivery Period"), file any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Underwriters within a reasonable period of time prior to the filing thereof and the Underwriters shall not have objected thereto in good faith.
(b) The Company will notify the Underwriters promptly, and will confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effectivethreat thereof, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in the second sentence of Section 5(d4(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleadingmisleading and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment. The Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and to notify the Underwriters promptly of all such filings.
(bc) To furnish The Company has furnished, or will furnish, to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to itUnderwriters, including all exhibitswithout charge, and to furnish to you and each Underwriter designated by you such number of two conformed copies of the Registration Statement as so filed and of each any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to it, without exhibits, as you may reasonably request.
(c) To prepare be incorporated by reference into the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective).
(d) Prior to 10:00 A.M.The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for such period as in time, the opinion of counsel for Company will deliver to the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealerRepresentatives, to furnish in New York City to each Underwriter and any dealer without charge, as many copies of the Prospectus (and of or any amendment or supplement to thereto as the Prospectus) as such Underwriter or dealer Representatives may reasonably request.
(e) If . The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters and by all dealers to whom the Units may be sold, both in connection with the offering or sale of the Units and during the period specified in Section 5(d)Prospectus Delivery Period. If, during the Prospectus Delivery Period any event shall occur or condition shall exist as a result of which, that in the opinion judgment of the Company or counsel for to the Underwriters, it becomes necessary to amend or supplement Underwriters should be set forth in the Prospectus in order to make the statements any statement therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which it was made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment or supplement thereto, and will deliver to the Prospectus so that the statements in the ProspectusRepresentatives, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer the Representatives may reasonably request in writingrequest. The Company shall not file any document under the Exchange Act before the termination of the offering of the Units by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus and if such document is not approved by the Representatives after reasonable notice thereof.
(f) Prior to any public offering of the SharesUnits by the Underwriters, to the Company will cooperate with you the Representatives and counsel for to the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Units for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Representatives may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail During the period of two years commencing on the date of the Price Determination Agreement, the Company will furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its stockholders securities as soon as may be practicable but in no event later than the last day of the 15th full calendar month following the calendar quarter in which the "effective date of the Registration Statement" (as defined in Rule 158 of the Rules and Regulations) falls, an earnings statement covering (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after such "effective date of the twelve-month period ending December 31, 2000 that shall satisfy Registration Statement" and satisfying the provisions of Section 11(a) of the Act, Act (including Rule 158 of the Rules and to advise you in writing when such statement has been so made availableRegulations).
(hi) During Whether or not the period transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance of three years after the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Prospectus and any amendment or supplement to the Registration Statement or the Prospectus, (ii) the preparation and delivery of certificates representing the Units, (iii) the word processing, printing and reproduction of this Agreement, the Agreement Among Underwriters, any Dealer Agreements and any Underwriter's Questionnaire, (iv) furnishing (including costs of shipping, mailing and courier) such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Units by the Underwriter or by dealers to whom Units may be sold, (v) the listing of the Corporate Units on the New York Stock Exchange, (vi) any filings required to be made by the Underwriters with the NASD, and the reasonable fees, disbursements and other charges of counsel to the Underwriters in connection therewith, (vii) the registration or qualification of the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f), including the reasonable fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (viii) counsel to the Company, (ix) the transfer agent for the Units and (x) the Accountant.
(j) The Company will not at any time, directly or indirectly, take any action intended, or that might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Units.
(k) The Company will apply the net proceeds from the offering and sale of the Units to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds." The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Units in such a manner as would require the Company or any of its Subsidiaries to register as an investment company under the Investment Company Act.
(l) The Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement, to furnish the Representatives an "electronic Prospectus" to you upon your written request copies be used by the Underwriters in connection with the offering and sale of all reports the Units. As used herein, the term "electronic Prospectus" means a form of Prospectus, and any amendment or other communications furnished supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the record holders Representatives, that may be transmitted electronically by the Representatives and the other Underwriters to offerees and purchasers of Common Stock the Units for at least the Prospectus Delivery Period; (ii) it shall disclose the same information as the paper Prospectus and Prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or furnished tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representatives, that will allow investors to store and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative within the Prospectus Delivery Period, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementProspectus.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Agent as follows:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Agent promptly andfollowing such filing.
(b) The Company will not, during such period as the Prospectus would be required by law to be delivered in connection with sales of the Securities by an underwriter or dealer in connection with the offering contemplated by this Agreement and the Securities Purchase Agreement, file any amendment or supplement to the Registration Statement or the Prospectus, except as required by law, unless a copy thereof shall first have been submitted to the Agent within a reasonable period of time prior to the filing thereof and the Agent shall not have reasonably objected thereto in good faith.
(c) The Company will notify the Agent promptly, and will, if requested by yourequested, to confirm such advice notification in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (2) of any request by the Commission for any amendments to the Registration Statement or amendments any amendment or supplements to the Prospectus or for additional information, but only during the period mentioned in Section 4(b); (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding proceedings for such purposesthat purpose or the threat thereof, but only during the period mentioned in Section 4(b); (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v4) of becoming aware of the happening occurrence of any event during the period referred to mentioned in Section 5(d4(b) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading; and (5) of receipt by the Company of any notification with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction, but only during the period commencing on the date of this Agreement and ending on the fifth anniversary following the date of this Agreement. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration StatementStatement in connection with the offering contemplated hereby, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of any such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of moment. If the Company has omitted any information from the Registration Statement as first filed Statement, pursuant to Rule 430A, it will use its best efforts to comply with the provisions of and make all requisite filings with the Commission and of each amendment pursuant to it, including all exhibits, said Rule 430A and to furnish to you and each Underwriter designated by you notify the Agent promptly of all such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivefilings.
(d) Prior If, at any time when a Prospectus relating to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Securities is required by law to be delivered in connection with sales by an Underwriter or a dealerunder the Act, to furnish in New York City to each Underwriter and any dealer as many copies the Company becomes aware of the Prospectus (and occurrence of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of whichwhich the Prospectus, as then amended or supplemented, would, in the opinion reasonable judgment of counsel for to the UnderwritersCompany or counsel to the Agent, it becomes include any untrue statement of a material fact or omit to state a material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or ifthe Registration Statement, as then amended or supplemented, would, in the opinion reasonable judgment of counsel to the Company or counsel to the Agent, include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if for the Underwriters, any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Agent, at any time to amend or supplement the Prospectus or the Registration Statement to comply with applicable lawthe Act or the Rules and Regulations, forthwith the Company will promptly notify the Agent and, subject to Section 4(b) hereof, will promptly prepare and file with the Commission Commission, at the Company's expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that corrects such statement or omission or effects such compliance and will deliver to the statements in Agent, without charge, such number of copies thereof as the Prospectus, as so amended or supplemented, will not in Agent may reasonably request. The Company consents to the light use of the circumstances when it is so deliveredProspectus or any amendment or supplement thereto by the Agent, be misleadingand the Agent agrees to provide to each Purchaser, or so that prior to the Closing, a copy of the Prospectus and any amendments or supplements thereto.
(e) The Company will comply furnish to the Agent and its counsel, without charge, with applicable law(i) one copy of the Registration Statement, including financial statements and schedules, and all exhibits thereto and (ii) so long as a prospectus relating to furnish the Securities is required to each Underwriter and to any dealer be delivered under the Act, as many copies thereof of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as such Underwriter or dealer the Agent may reasonably request in writingrequest.
(f) The Company will comply with all the undertakings contained in the Registration Statement.
(g) Prior to any public offering the sale of the SharesSecurities to the Purchasers, to the Company will cooperate with you the Agent and its counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky blue sky laws of such jurisdictions as you the Agent may reasonably request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail The Company will apply the net proceeds from the offering and make generally available sale of the Securities in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(i) The Company will use its best efforts to its stockholders ensure that the Securities are listed on AMEX at the time of the Closing.
(j) For a period of two years from the Closing Date, the Company will furnish to the Agent, as soon as practicable an earnings statement covering the twelve-month period ending December 31they are available, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications (financial or other) furnished to the record holders of Common Stock the Securities, other than any such reports or furnished to or communications filed with the Commission or any national securities exchange on which any class of securities of pursuant to the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestCommission's EDGAR system.
(i▇) To use its best efforts ▇he Company will not at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to list for quotation the Shares on the Nasdaq National Market and to maintain the listing cause or result in, or which will constitute, stabilization of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery price of the Shares.
(k) If Common Stock to facilitate the Registration Statement at the time sale or resale of any of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementSecurities.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you you, without charge, five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M.a.m., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or preliminary prospectus supplement or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation During the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three five years after the date of this Agreement, to mail as soon as reasonably practicable after the end of each fiscal year to the record holders of its Common Stock a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent certified public accountants.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company and, except as otherwise provided in this Agreement, the Selling Stockholders under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel, the Company's accountants and any Selling Stockholder's counsel (in addition to the Company's counsel) in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus or preliminary prospectus supplement, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters (other than any transfer or other taxes payable thereon, which shall be paid by the Selling Stockholders), (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar and/or depositary, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholders hereunder for which provision is not otherwise made in this Section. The provisions of this Section shall not supersede or otherwise affect any agreement that the Company and the Selling Stockholders may otherwise have for allocation of such expenses among themselves.
(k) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M.p.m., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:you as follows: --------------------------
(a) To The Company shall use its best efforts to cause the Registration Statement and any amendments to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act") before termination of the offering of the Securities by you of which you and your counsel shall not previously have been advised and furnished with a copy, or to which you or your counsel shall have objected (except if deemed necessary by counsel for the Company, in which case you shall have the right to terminate this Agreement upon prompt notice to the Company), or which is not in compliance with the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the Rules and Regulations. As soon as the Company is advised or obtains knowledge thereof, the Company will advise you promptly and, if requested by you, to and as soon as practicable, confirm such advice in writing, (i) when the Registration Statement, as amended, becomes effective and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any request by the Commission for amendments post- effective amendment to the Registration Statement or amendments or supplements to the Prospectus or for additional informationbecomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation, or the threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of the Shares any Securities for offering or sale in any jurisdictionjurisdiction or of the initiation, or the initiation threatening, of any proceeding for such purposesthat purpose, (iiiiv) when of the receipt of any comments from the Commission, and (v) of any request by the Commission for any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you or for additional information. If the Commission or any state securities commission shall not previously have been advised enter a stop order or to which you shall reasonably object after being so advised; providedsuspend such qualification at any time, that the Company shall have will make every effort to obtain promptly the right lifting of such order or suspension.
(b) The Company will furnish to make such further amendments as are required by law you, without charge, three signed copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and all exhibits.
(c) The Company will give you advance notice of its intention to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus, and will not file any such amendment or supplement to which you shall reasonably object in writing or which is not in compliance with the Act.
(d) From the date hereof, and thereafter from time to time, the Company will deliver to you, without charge, as such Underwriter many copies of the Prospectus, or dealer any amendment or supplement thereto as you may reasonably request.
(e) . The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and for such period of time thereafter as the Prospectus is required to be delivered under the Act in connection therewith. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, which in the opinion reasonable judgment of the Company or your counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment or supplement thereto and will deliver to the Prospectus so that the statements in the Prospectusyou, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer you may reasonably request in writingrequest.
(fe) Prior to any public offering of the SharesSecurities by you, to the Company will cooperate with you and your counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you request. The Company will pay all reasonable fees and expenses (including reasonable fees and expenses of counsel) relating to qualification of the Securities under such securities or Blue Sky laws and in connection with the determination of the eligibility of the Securities for investments under the laws of such jurisdictions as you may designate, including the reasonable expenses of any opinion of local counsel required by any state securities or Blue Sky authorities.
(f) So long as any of the Securities remain outstanding, the Company will furnish to its securityholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants), and will deliver to you, as representative for the underwriters:
(i) concurrently with furnishing such quarterly reports to its securityholders, statements of income of the Company for each quarter in the form furnished to the Company's securityholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its securityholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any state securities commission, NASDAQ/SCMS, the NASD or any securities exchange;
(v) every press release and every material news item regarding each of the Company and the Subsidiaries or their respective affairs which were released or prepared by or on behalf of the Company or any of the Subsidiaries; and
(vi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiaries) or their respective businesses which you may request. During such period, if the Company has active subsidiaries, the foregoing financial statements will be on a consolidated basis to continue such registration or qualification in effect so long as required for distribution the extent that the accounts of the Shares Company and to file such consents to service of process or other documents as may its subsidiaries are consolidated, and will be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in accompanied by similar financial statements for any jurisdiction in significant subsidiary which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subjectconsolidated.
(g) To mail The Company will pay all expenses in connection with (1) the preparation, printing and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) filing of the ActRegistration Statement, each preliminary prospectus, the Prospectus, any legal investment memoranda and the Blue Sky Survey, (2) the issuance and delivery of the Securities (other than transfer taxes), (3) the rating of the Securities by rating agencies, (4) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, all amendments and supplements thereto, as may reasonably be requested for use in connection with the offering and sale of the Securities by you or by dealers to whom Securities may be sold, and to advise you in writing when such statement has been so made available(5) filings with the National Association of Securities Dealers, Inc. ("NASD").
(h) During The Company will use the period net proceeds from the sale of three years after the Securities in the manner specified in the Prospectus under the caption "Use of Proceeds." No portion of the net proceeds will be used, directly or indirectly, to acquire or redeem any securities issued by the Company.
(i) The Company will appoint and retain, while any of the Securities remain outstanding, a transfer agent for the Securities, and, if necessary, a registrar for the Securities (who may be the transfer agent), and will make arrangements to have available at the offices of the transfer agent certificates for the Securities in such quantities as may, from time to time, be necessary. As of the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with transfer agent for the Commission or any national securities exchange on which any class of securities of the Company is listed American Securities Transfer and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestTrust Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 1825, Denver, CO 80202.
(ij) To For a period of five years from the date hereof, the Company shall use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares its common stock on the Nasdaq National Market for a period Association of three years after the date of this Agreement.
Securities Dealers, Inc. (j"NASD") To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Sharesover-the-counter market.
(k) If Neither the Registration Statement at the time Company nor any of the effectiveness Subsidiaries nor any of this Agreement does not cover all their respective executive officers, directors, principal stockholders or affiliates (within the meaning of the SharesRules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to file a Rule 462(bcause or result in, stabilization or manipulation of the price of any securities of the Company in violation of the Exchange Act.
(l) Registration Statement Until the completion of the distribution of the Securities, neither the Company nor any of the Subsidiaries shall, without prior written consent of you and your counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Commission registering Company, any of the Shares not so covered Subsidiaries, their respective activities or the offering contemplated hereby, other than trade releases issued in compliance the ordinary course of the Company's business consistent with Rule 462(b) by 10:00 P.M., New York City time, on past practices with respect to the date of this AgreementCompany's operations.
Appears in 1 contract
Agreements of the Company. 6. The Company agrees with youand the Secured Party covenant and agree that:
(a) To advise you promptly and, if requested by you, they have not agreed to confirm such advice in writing, (i) postpone the time for attachment of any request by the Commission for amendments security interests granted hereby with respect to the Registration Statement or amendments or supplements Charged Assets presently existing and that such security interests shall attach to the Prospectus or for additional information, (ii) of Charged Assets acquired after the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if date hereof as soon as the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to rights in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.assets;
(b) To furnish to you five photocopies of signed copies in accordance with subsection 7(3) of the Land Registration Statement as first filed with Reform Act (Ontario), the Commission and covenants deemed to be included in a charge by subsection 7(1) of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.Act are expressly excluded from this debenture; and
(c) To prepare the Prospectussubject to paragraph 29 hereof, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to not at any time hereafter make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment claim to the Registration Statement Charged Assets, challenge the Secured Party's rights thereto or amendment or supplement make any demands upon the Secured Party with respect to the Prospectus Charged Assets and that the Secured Party shall from this time forward be exonerated and discharged of and from all claims and demands which may be necessary the Company might or advisable could have against the Secured Party with respect to the Charged Assets.
7. The Company represents and warrants to the Secured Party that:
(a) the Company is the sole registered, legal and beneficial owner of an estate in connection fee simple in the Lands described in Appendix "A" hereto with good and marketable title thereto, and the distribution Company is the sole legal and beneficial owner of the Shares remainder of the Charged Assets, free of encumbrances or other right whatsoever except for the liens permitted under the Credit Agreement or otherwise approved by you, the Secured Party in writing ("Permitted Encumbrances");
(b) the Company is the sole owner of the Charged Assets (except for future property);
(c) the Company is duly incorporated and to use in good standing under the laws of its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.jurisdiction of incorporation;
(d) Prior neither the execution of this debenture nor the performance by the Company of its obligations hereunder will result in any breach of or default under any law or any other agreement or document to 10:00 A.M.which the Company is a party or by which it may be bound; and
(e) the Company has the right, New York City timepower and lawful authority to charge and mortgage to the Secured Party, on and otherwise grant security interests in all of its right, title and interest in and to, the first Charged Assets as provided for in this debenture and this debenture constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting creditors' rights and the discretion exercisable by Courts of competent jurisdiction in respect of the availability of equitable remedies.
8. The Company agrees with the Secured Party that until all indebtedness and liability owing by the Company to the Secured Party are paid in full:
(a) it will not, without the prior written consent of the Secured Party:
(i) incur, create, assume or permit to exist any further or additional indebtedness except as permitted under the terms of the Credit Agreement;
(ii) create, assume or permit to exist any liens upon, assign, transfer, mortgage, charge, pledge, hypothecate or otherwise grant security over or a security interest in any of the Charged Assets except to the Secured Party and except Permitted Encumbrances;
(iii) sell, transfer, assign, or otherwise dispose of any of the Charged Assets or any group of property and assets forming part of the Charged Assets except for a sale of inventory in the ordinary course of business day after and such other sales as permitted under the Credit Agreement;
(iv) merge or amalgamate with any other corporation except as permitted under the Credit Agreement;
(v) change the location of its chief executive office, place of business or principal place of residence without providing the Secured Party with fifteen days' prior written notice;
(vi) take any action (or not take any action) which would result in a default hereunder or an Event of Default under the Credit Agreement;
(vii) remove the Charged Assets from the locations referred to in paragraph 3 hereof unless such removal is a permitted sale of the Charged Assets or keep the Charged Assets at a location other than the locations referred to in paragraph 3 hereof provided that the Company may also remove Charged Assets to another location upon the condition that it provide the Secured Party with at least 14 days prior written notice of its intention to do so and provides to the Secured Party prior to such removal an agreement from any lessor of such location as provided in subparagraph 9(1) hereof; or
(viii) change its name without giving prior written notice to the Secured Party of the new name and the date upon which such change of name will take effect; and
(b) it will:
(i) hold the proceeds received from any direct or indirect dealing with the Charged Assets in trust for the Secured Party after either the occurrence of a default under the Credit Agreement or the security constituted by this debenture becoming enforceable or any of the Charged Assets are sold other than in the ordinary course of business of the Company and for the purpose of carrying on such business save and except as otherwise permitted by the Credit Agreement, and forthwith remit such proceeds to the Secured Party;
(ii) strictly comply with every covenant and undertaking heretofore or hereafter given by it to the Secured Party and take any action that may be necessary to enable any Borrower under the Credit Agreement to comply with its Obligations thereunder;
(iii) permit the Secured Party at any time and from time to time thereafter time, when the security granted pursuant to this debenture shall have become enforceable, to require any account debtor of the Company to make payment to the Secured Party of any or all amounts owing by the account debtor to the Company and the Secured Party may take control of any proceeds referred to in subparagraph 2(h) hereof and may hold all such amounts received from any account debtor and any such proceeds as cash collateral as part of the Charged Assets and as security for such period as the indebtedness and liability secured by this debenture;
(iv) deliver to the Secured Party promptly upon request, any documents of title, instruments, securities and chattel paper constituting, representing or relating to the Charged Assets and all statements of account, bills, invoices and books of account relating to accounts and all records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Charged Assets for the purpose of inspecting, auditing or copying same;
(v) at the Secured Party's request, cause all securities which constitute Charged Assets to be registered in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies name of the Prospectus (Secured Party or its nominee and of any amendment or supplement the Company hereby authorizes the Secured Party to transfer such securities into the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light name of the circumstances when the Prospectus is delivered to a purchaser, not misleading, Secured Party or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus its nominee so that the statements in Secured Party or its nominee may appear as the Prospectus, as so amended or supplemented, will not in the light sole owner of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws record of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualificationsecurities; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectusshall, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.at
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(ai) To advise If the Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Registration Statement and any post-effective amendments thereto to become effective as promptly as possible; the Company will notify you promptly and, if requested by you, of the time when the Registration Statement or any post-effective amendment to confirm such advice in writing, the Registration Statement has become effective or any supplement to the Prospectus (iincluding 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 amendments any amendment or supplement to the Registration Statement or Prospectus or additional information; if the Company has elected to rely on Rule 430A of the Rules and Regulations, the Company will prepare and file a Prospectus (or term sheet within the meaning of Rule 434 of the Rules and Regulations) containing the information omitted therefrom pursuant to Rule 430A of the Rules and Regulations with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and Regulations; if the Company has elected to rely upon Rule 462(b) of the Rules and Regulations to increase the size of the offering registered under the Act, the Company will prepare and file a registration statement with respect to such increase with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b); the Company will prepare and file with the Commission, promptly upon your request, any amendments or supplements to the Registration Statement or Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) that, in your opinion, may be necessary or for additional information, advisable in connection with the distribution of the Notes by the Underwriters; and the Company will not file any amendment or supplement to the Registration Statement or Prospectus (including any term sheet within the meaning of Rule 434 of the Rules and Regulations) to which you shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or Statement, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purposes, purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(iii) when Within the time during which a prospectus (including any amendment term sheet within the meaning of Rule 434 of the Rules and Regulations) relating to the Registration Statement becomes effective, (iv) if the Company Notes is required to file a Rule 462(b) Registration Statement after be delivered under the effectiveness Act, the Company will comply as far as it is able with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of this Agreement, when sales of or dealings in the Rule 462(b) Registration Statement has become effective Notes as contemplated by the provisions hereof and (v) of the happening of Prospectus. If during such period any event during occurs as a result of which the period referred to in Section 5(d) below which makes any Prospectus would include an untrue statement of a material fact made 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 untrue or which requires any additions to or changes in comply with the Act, the Company will promptly notify you and will amend the Registration Statement or supplement the Prospectus in order to make (at the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness expense of the Registration Statement, the Company will use its reasonable best efforts Company) so as to obtain the withdrawal correct such statement or lifting of omission or effect such order at the earliest possible timecompliance.
(biv) To The Company will furnish to you five photocopies each of the Underwriters and their counsel, without charge, one signed copies copy of the Registration Statement as first filed with the Commission and of each amendment to itthereto, including all exhibitsexhibits thereto and documents incorporated therein by reference, and to will also furnish to you and each Underwriter designated by you of the Underwriters, without charge, such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, thereto as you each of the Underwriters may reasonably request.
(cv) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus of which you the Underwriters shall not previously have been advised or to which you shall reasonably object any of the Underwriters promptly after being so advised; providedadvised shall reasonably have objected in writing.
(vi) Prior to the effective date of the Registration Statement, that the Company shall will have delivered or will deliver to each Underwriter, without charge, copies of each form of preliminary prospectus in such quantities as such Underwriter has reasonably requested or may hereafter reasonably request for the right to make such further amendments as are required purposes contemplated by law to be made and shall forthwith notify you the Act.
(vii) On the effective date of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for during such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with offers or sales of the Notes by an Underwriter or a dealer, to furnish in New York City the Company will deliver to each Underwriter and any dealer dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer they may reasonably request.
(e) If during the period specified in Section 5(d). During such period, if any event shall occur occurs which in the judgment of the Company, or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to ensure that no part of the Prospectus includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances when at the time the Prospectus is delivered to a purchaser, not misleading, or ifthe Company will forthwith prepare, in the opinion of counsel for submit to the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Underwriters to the Company) to whom Notes have been sold by the Underwriters or to other dealers upon request, an appropriate amendment or supplement supplement, as appropriate, to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not comply with the standards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the light preliminary Blue Sky memorandum in which the Notes are lawfully offered by the several Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering or sale of the circumstances when it is so delivered, be misleading, or so that Notes and for such period of time thereafter as the Prospectus will comply with applicable lawis required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto) more than nine months after the first date upon which the Notes are offered to the public, and to the Company will, upon the request of the Underwriters but at the expense of such Underwriter, furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingwith reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(fviii) Prior to any public offering of the Shares, to The Company will cooperate with you the Underwriters and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Notes for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated (w) to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or qualified, (x) to file any general consent to service of process, (y) take any action that would subject it to general consent income taxation in any jurisdiction where it is not so qualified or (z) to service take any action to amend its Articles of process Incorporation in order to make the Company's securities eligible for registration or taxation other than as to matters and transactions relating qualification in any state.
(ix) The Company will make generally available to the Prospectusholders of Notes an earnings statement of the Company and its subsidiaries, which need not be audited, as soon as practicable but not later than 18 months after the effective date of the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made availablethe rules and regulations of the Commission thereunder (including Rule 158).
(hx) During the For a period of three five years after the date of this Agreement, to :
(A) the Company will furnish to you upon your written request the Underwriters (1) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders, (2) copies of all annual, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and any amendment thereto or such other communications furnished similar forms as may be designated by the Commission or required to be filed by the record holders Company pursuant to Sections 13, 14 and 15 of Common Stock or the Exchange Act, which the Company agrees to timely file with the Commission for so long as may be required, (3) a copy of each report furnished to or filed with the Commission or any national securities exchange on which any class of securities or the National Market of the Company is listed National Association of Securities Dealers Automated Quotation System ("Nasdaq National Market") and (4) from time to time, such other publicly available information concerning the Company and its subsidiaries as you the Underwriters may reasonably request; and
(B) if at any time during such five-year period, the Company shall cease filing with the Commission the annual, quarterly reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (A) above, the Company will forward to its stockholders generally and the Underwriters
(1) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, audited by independent public accountants, and (2) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be audited) of income and retained earnings of the Company for such period, which shall also be made publicly available. If and so long as the Company shall have any subsidiaries, the financial statements referred to above shall be consolidated to the extent the accounts of the Company and such subsidiaries are consolidated, and separate financial statements shall be furnished for each significant subsidiary, as defined in Regulation S-X of the Commission, whose accounts are not so consolidated.
(ixi) To use its best efforts Prior to list for quotation the Shares on Closing Date, the Nasdaq National Market Company will issue no press release or other public communication directly or indirectly and hold no press conference with respect to maintain the listing of Company or any subsidiary or this offering, without the Shares on the Nasdaq National Market for a period of three years after the date of this AgreementUnderwriters' prior written consent.
(jxii) To use The Company will pay, or reimburse if paid by the Underwriters, whether or not the transactions contemplated hereby are consummated or this Agreement is prevented from becoming effective under the provisions of Section 10 hereof or is terminated, all costs and expenses incident to the performance by it of its reasonable best efforts to do and perform all things required or necessary to be done and performed obligations under this Agreement including, without limiting the generality of the foregoing, (1) typesetting, printing, duplicating, and filing (and all preparation therefor) and distribution (including, without limitation, postage, air freight charges and charges for counting and packaging) of the original registration statement, the Registration Statement, each preliminary prospectus, the Prospectus, each amendment and/or supplement to any of the foregoing, and this Agreement and other underwriting documents and the Indenture, (2) all costs of furnishing to the several Underwriters and dealers copies of the foregoing materials (provided, however, that any such copies furnished by the Company prior more than nine months after the first date upon which the Notes are offered to the Closing Date public shall be at the expense of the several Underwriters or any Option Closing Datedealers so requesting as provided in paragraph (vi) above), as (3) the case may be, registrations or qualifications referred to in paragraph (viii) above (including reasonable fees and to satisfy all conditions precedent disbursements of counsel in connection therewith) and expenses of printing and delivering to the delivery several Underwriters copies of the Sharespreliminary and final Blue Sky memorandum, (4) the review of the terms of the public offering of the Notes by the National Association of Securities Dealers, Inc. (the "NASD") (including the filing fees paid to the NASD in connection therewith) and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith, (5) the performance by the Company of its other obligations under this Agreement, including the fees of the Company's counsel and accountants, (6) the issuance of the Notes and the preparation and printing of the certificates representing the Notes, (7) the fees and expenses of the Trustee and any agent of the Trustee and any transfer or paying agent for the Company, (8) all travel, lodging and reasonable living expenses incurred by the Company in connection with marketing, dealer and other meetings attended by the Company and the Underwriters in marketing the Notes, (9) listing fees, if any, (10) any fees charged by security rating services for rating the Notes and (11) furnishing to the several Underwriters copies of all reports and information required by paragraph (x) above, including costs of shipping and mailing.
(kxiii) If the Registration Statement at the time sale of the effectiveness Notes provided for herein is not consummated by reason of this Agreement does not cover all of action by the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.Company pursuant to
Appears in 1 contract
Sources: Purchase Agreement (Consumer Portfolio Services Inc)
Agreements of the Company. The Company agrees with you:
(a) Immediately following the determination of the Purchase Price, to prepare, and file or transmit for filing with the Commission in accordance with Rule 424(b) of the Act, copies of a prospectus supplement relating to the Securities and containing all the information required under the Act.
(b) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) when the Registration Statement has become effective, if it is not effective on the date hereof, and when any post- effective amendment to it becomes effective, (ii) of the receipt of comments, if any, from the Commission relating to the Registration Statement, (iii) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (ivv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this AgreementStatement, when the Rule 462(b) Registration Statement has become effective and (vvi) of the happening of any event during the period referred to in Section 5(dparagraph (e) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To furnish to you you, without charge, five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to itthereto, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to itthereto, without exhibits, as you may reasonably request.
(cd) To prepare Prior to the termination of the offering of Securities, (A) not to (i) file any Rule 462(b) Registration Statement, (ii) file any amendment or supplement to the Registration Statement, (iii) file any document under the Exchange Act which shall be deemed to be incorporated by reference into the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bor (iv) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus (including the issuance or filing of any Term Sheet), of which you shall not previously have been advised or to which you shall reasonably object after being so advisedobject; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, (B) to prepare and file with the Commission, promptly upon your reasonable request, any Rule 462(b) Registration Statement, Term Sheet or amendment or supplement to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares Securities by you, and which, in the judgment of the Company or in the opinion of counsel for the Underwriters, is required by law, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(de) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from From time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(ef) If during the period specified in Section 5(dparagraph (e), any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the judgment of the Company or in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleadingmisleading in any material respect, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many you shall specify, such number of copies thereof as such Underwriter or dealer dealers may reasonably request in writingrequest.
(fg) Prior to any public offering of the SharesSecurities, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares Securities and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to the service of process or taxation under the laws of any such jurisdiction (other than as to matters and transactions relating to the Prospectus, Prospectus and the Registration Statement, any preliminary prospectus or ); and to promptly advise the offering or sale Underwriters of the Shares, receipt by the Company of any notification with respect to the suspension of qualification of the Securities for sale in any jurisdiction in which it is not now so subjector the initiation or threatening of any proceeding for such purpose.
(gh) To mail and make generally available to its stockholders the holders of the Securities as soon as reasonably practicable an a consolidated earnings statement that need not be audited covering a period of at least twelve months after the twelve-month period ending December 31, 2000 that Closing Date (but in no event commencing later than 90 days after such date) which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During So long as any of the period of three years after the date of this AgreementSecurities are outstanding, to furnish to you upon your written request copies as soon as available a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to the Securities or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries Subsidiaries as you may reasonably request.
(j) To pay or cause to be paid all costs, expenses, fees and taxes incident to (i) To use its best efforts the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), each preliminary prospectus relating to list the Securities and all amendments and supplements to any of them prior to or during the period specified in paragraph (e), (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the period specified in paragraph (e), (iii) the word processing, printing and delivery of this Agreement and the Indenture and other agreements or documents in connection with the Securities, (iv) the registration or qualification of the Securities for quotation offer and sale under the Shares on securities or Blue Sky laws of the Nasdaq National Market several states (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda or surveys relating thereto), and the printing and furnishing of copies of any blue sky or legal investment memoranda or surveys to the Underwriters and to maintain dealers, (v) the listing rating of the Shares on Securities by securities rating agencies or services for rating the Nasdaq Securities, (vi) any filing fees of the National Market Association of Securities Dealers, Inc., (vii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (viii) the cost of printing certificates representing the Securities, (ix) the fees and expenses of the Trustee and the Mortgage Trustee in connection with the Indenture, the Mortgage Indenture, the Securities and the First Mortgage Bonds, (x) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be reasonably requested for a period use in connection with the offering or sale of three years after the date Securities by the Underwriters or by dealers to whom Securities may be sold, and (xi) the performance of this Agreementthe Company's other obligations hereunder.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesSecurities.
(kl) To use the net proceeds received by it from the sale of Securities in the manner specified in the Prospectus under "Use of Proceeds."
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants to purchase debt securities of the Company substantially similar to the Securities, other than (i) the Securities, (ii) commercial paper issued in the ordinary course of business, (iii) securities issued under the Mortgage Indenture, and (iv) promissory notes issued for working capital purposes under the Company's existing bank credit facilities, without your prior written consent.
(n) If the Registration Statement at Securities are not delivered for any reason other than the time of the effectiveness termination of this Agreement does not cover pursuant to the third paragraph of Section 9 hereof or the default by an Underwriter in its obligation hereunder, the Company shall reimburse the Underwriters for all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreementtheir counsel.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe several Underwriters that:
(a) To The Company will endeavor to cause the Registration Statement to become effective and will advise you the Representatives promptly and, if requested by youthe Representatives, to will confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment to it becomes effective, and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments Prospectus or supplements to the any Preliminary Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, and (iv) if within the Company is required period of time referred to file a Rule 462(bin paragraph (f) Registration Statement after the effectiveness of this Agreementbelow, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein not misleadingmisleading or the necessity to amend or supplement the Prospectus to comply with 16 the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment. If the Company elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Representatives with copies of the form of Rule 434 Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in Chicago on the business day immediately succeeding the date hereof. If the Company elects not to rely on Rule 434, the Company will provide you with copies of the form of Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, by the close of business in Chicago on the business day immediately succeeding the date hereof.
(b) To furnish to you five photocopies of signed copies of If, at the time that the Registration Statement as first filed becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Act, then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission Commission, in accordance with Rule 430A and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further copies of an amended Prospectus, or, if required by Rule 430A, a post-effective amendment to the Registration Statement and (including an amended Prospectus) containing all information so omitted.
(c) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Option Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you the Representatives shall not previously have been advised or to which you the Representatives shall reasonably object promptly after being so advised; providedadvised reasonably object in writing.
(e) Prior to the effective date of the Registration Statement, that the Company shall has delivered or will deliver to each of the Underwriters, without charge, copies of each form of Preliminary Prospectus in such quantities as they have reasonably requested or may hereafter reasonably request. The Company consents to the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; anduse, during such period, to prepare and file in accordance with the Commissionprovisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, promptly upon your reasonable requestprior to the effective date of the Registration Statement, any amendment to of each Preliminary Prospectus so furnished by the Company.
(f) On the effective date of the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for during such period as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is required by law to be delivered in connection with 17 offers or sales of the Shares by an Underwriter or a dealer, to furnish in New York City the Company will deliver to each Underwriter and any dealer dealer, without charge, as many copies of the Registration Statement, the Prospectus and each Preliminary Prospectus and the Incorporated Documents (and of any amendment or supplement to the Prospectussuch documents) as such Underwriter or dealer they may reasonably request.
(e) If during the period specified in Section 5(d). During such period, if any event shall occur occurs which in the judgment of the Company, or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to ensure that no part of the Prospectus includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances when at the time the Prospectus is delivered to a purchaser, not misleading, or ifthe Company will forthwith prepare, in submit to the opinion of counsel for the UnderwritersRepresentatives, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Representatives to the Company) to whom shares have been sold by the Underwriters or supplement to other dealers any amendments or supplements to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not comply with the standards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the light preliminary Blue Sky memorandum in which the Shares are lawfully offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the circumstances when it is so delivered, be misleading, or so that Shares and for such period of time thereafter as the Prospectus will comply with applicable lawis required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto) more than nine months after the first date upon which the Shares are offered to the public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingwith reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you the Representatives and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Representatives may requestdesignate, to will continue such registration registrations or qualification qualifications in effect so long as reasonably required for the distribution of the Shares and to will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated (i) to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified qualified, (ii) to file any general consent to service of process, or to (iii) take any action that would subject it to general consent to service of process or income taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subjectqualified.
(gh) To mail For a period of five years after the date of the Pricing Agreement:
(i) the Company will furnish to the Representatives (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders (B) copies of all annual reports and current
(ii) if at any time during such five year period, the Company shall cease filing with the Commission the annual reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i) above, the Company will forward to its stockholders generally and the Representatives and upon request to each of the other Underwriters (A) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, certified by independent public accountants, and (B) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be certified) of income and retained earnings of the Company for such period, which shall also be made publicly available; and
(iii) the Company will furnish to the Representatives and to the NASD, and by issuance of a press release, on the date of declaration, notice of all dividends, including the amount and medium of payment, the record date (which shall be not less than ten days subsequent to the declaration date) and the payment date (which shall be not less than ten days subsequent to the record date).
(i) The Company will make generally available to its stockholders security holders an earnings statement of the Company, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made available.
(h) During the period rules and regulations of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
thereunder (i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreementincluding Rule 158).
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than pursuant to Section 9 hereof or by notice given by the Company prior Representatives of termination of this Agreement pursuant to Section 10 hereof), or if this Agreement shall be terminated by the Closing Date several Underwriters because of any failure or any Option Closing Date, as refusal on the case may be, and to satisfy all conditions precedent to the delivery part of the SharesCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the several Underwriters for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) reasonably incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise. If this Agreement is terminated pursuant to Section 10 hereof, the several Underwriters shall themselves bear any such out-of-pocket expenses incurred by them.
(k) If Except as set forth in the Registration Statement at Lockup Agreements, the time Company will not sell, contract to sell or otherwise dispose of the effectiveness any Common Stock or rights to purchase Common Stock for a period of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on 90 days after the date of the Pricing Agreement without the prior written consent of the Representatives. The Company will also obtain similar agreements from each of its officers and directors.
(l) The Company will apply the net proceeds from the sale of the shares to be sold by it under this AgreementAgreement and the Pricing Agreement for the purposes set forth in the Prospectus under the caption "Use of Proceeds."
(m) The Company will use its best efforts, subject to notice of issuance, to list the Shares on the New York Stock Exchange.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you the Underwriters promptly and, if requested by youthe Underwriters, to will confirm such advice in writing, when such post-effective amendment has become effective.
(ib) The Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing: of any request by the Commission for amendments amendment of or a supplement to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) ; of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposespurpose; and within the period of time referred to in paragraph (e) below, of any change in the Company's condition (iii) when any amendment to the Registration Statement becomes effectivefinancial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time within the time period referred to in paragraph (e) the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of signed copies of the Registration Statement as first filed with Underwriters, without charge and upon the Commission and of each amendment to itUnderwriters' request, including all exhibits, and to furnish to you and each Underwriter designated by you (i) such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as the Underwriters may reasonably request, (ii) such number of copies of the Incorporated Documents, without exhibits, as you the Underwriters may reasonably request, and (iii) one copy of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (e) below, file any document which upon filing, becomes an Incorporated Document, of which you the Underwriters shall not previously have been advised or to which you which, after the Underwriters shall have received a copy of the document proposed to be filed, the Underwriters shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectiveobject.
(de) Prior to 10:00 A.M., New York City time, on the first business day As soon after the date execution and delivery of this Agreement as possible and thereafter from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a any dealer, to furnish in New York City the Company will expeditiously deliver to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer the Underwriters may reasonably request.
. Subject to the provisions of subsection (ef) below, the Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws or real estate syndication laws of the jurisdictions in the United States in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Underwriters is required to amend or supplement be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or supplement to such document), and will expeditiously furnish to the Prospectus so Underwriters and dealers a reasonable number of copies thereof. In the event that the statements in Company and the Prospectus, as so Underwriters agree that the Prospectus should be amended or supplemented, the Company, if requested by the Underwriters, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(f) Prior to any public offering of the Shares, to The Company will cooperate with you the Underwriters and with counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws or real estate syndication laws of such jurisdictions as you the Underwriters may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail and The Company will make generally available to its stockholders as soon as practicable an security holders a consolidated earnings statement covering the twelve-month period ending December 31statement, 2000 that which need not be audited, which shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years The Company will furnish to its shareholders, as soon as practicable after the date end of this Agreementeach respective fiscal year, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestan annual report (including financial statements audited by independent public accountants).
(i) To use its best efforts to list for quotation If this Agreement shall terminate or shall be terminated after execution by the Shares Underwriters because of any failure or refusal on the Nasdaq National Market and to maintain the listing part of the Shares on Company to comply with the Nasdaq National Market terms or fulfill any of the conditions of this Agreement to be complied with or fulfilled by the Company, the Company agrees to reimburse the Underwriters for a period all reasonable out-of-pocket expenses (including fees and expenses of three years after counsel) incurred by the date of Underwriters in connection with this Agreement.
(j) To use its reasonable best efforts The Company will apply the net proceeds from the sale of the Shares substantially in accordance with the description set forth under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will timely file the Prospectus pursuant to do Rule 424(b) under the Act and perform all things required will advise the Underwriters or necessary to be done the Underwriters' counsel of the time and performed under manner of such filing.
(l) Except as stated in this Agreement by and in the Prospectus, the Company prior has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Closing Date price of the Common Stock to facilitate the sale or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery resale of the Shares.
(km) If The Company will use its best efforts to list the Registration Statement at Shares on the time NYSE.
(n) Subject to the determination by the Board of Directors of the effectiveness Company to the contrary, the Company will use its best efforts to meet the requirements to qualify as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the "Code") and to cause the Partnership to be treated as a partnership for federal income tax purposes.
(o) Except as provided in this Agreement does Agreement, the Company will not cover all offer, sell, contract to sell, pledge or otherwise dispose of the Shares, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or grant any options or warrants to file purchase Common Stock for a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on period of 30 days after the date of this Agreementthe Prospectus Supplement, without the prior written consent of A.G. Edwards & Sons, Inc., except (i) for the issuance of Common Stock pursuant to the redemption of units of limited partnership interest in the Partnership ("Partnership Units") in accordance with the Third Amended and Restated Agreement of Limited Partnership of the Partnership, as amended and (ii) for options or Common Stock issued pursuant to stock option or stock purchase plans as described in the Prospectus or the Incorporated Documents.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To In respect of the offering of Shares, to (i) prepare a prospectus supplement setting forth the number of Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Shares are being issued, the names of the Underwriters participating in the offering and the number of Shares which each severally has agreed to purchase, the names of the Underwriters acting as co-managers, if any, in connection with the offering, the price at which the Shares are to be purchased by the Underwriters from the Company, the public offering price, the selling concession and reallowance if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Shares and (ii) file the Prospectus in a form approved by you pursuant to Rule 424 under the Act no later than the Commission's close of business on the second business day following the date of determination of the offering price of the Shares.
(b) At any time when the Prospectus is required to be delivered under the Act in connection with sales of Shares, to advise you promptly and, if requested by you, to confirm such advice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus or other supplement or amendment to the Prospectus to be filed pursuant to the Act, (iii) the receipt of any comments from the Commission relating to the Registration Statement, any preliminary prospectus relating to the Shares, the Prospectus or any of the transactions contemplated by this Agreement, (iv) any request by the Commission for post-effective amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (vvi) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If The Company will make every reasonable effort to prevent the issuance of any stop order and if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To furnish to you five photocopies of one signed copies copy, without charge, of the Registration Statement as first filed with the Commission and of each amendment to itthereto, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits and without documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus. If applicable, the form copies of the Registration Statement and substance of which shall each amendment thereto furnished to the Underwriters will be satisfactory identical to you, and to file the Prospectus in such form electronically transmitted copies thereof filed with the Commission within pursuant to ▇▇▇▇▇, except to the applicable period specified in Rule 424(bextent permitted by Regulation S-T.
(d) At any time when the Prospectus is required to be delivered under the Act; during the period specified Act in Section 5(d) belowconnection with sales of Shares, not to file any further amendment to the Registration Statement and not or any Rule 462(b) Registration Statement or to make any amendment or supplement to the Prospectus or any Term Sheet, if applicable, of which you shall not previously have been advised or to which you or counsel for the Underwriters shall reasonably object after being so advisedobject; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement Statement, Rule 462(b) Registration Statement, Term Sheet, or amendment or supplement to the Prospectus which which, in the opinion of counsel for the Underwriters, may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement same to become promptly effective.. If applicable, the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(de) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(ef) If during the period specified in Section 5(d5(e), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(fg) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(gh) To mail and make generally available to its stockholders pursuant to Rule 158 of the Act as soon as practicable an earnings statement which need not be audited covering the twelve-month period ending December March 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act1999, and to advise you in writing writing, if requested by you, when such statement has been so made available.
(hi) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(j) During the period when the Prospectus is required to be delivered under the Act in connection with sales of the Shares, to file all documents required to be filed by it with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act.
(k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs, if any, of printing, producing or delivering this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., if applicable, (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of the preparation, issuance and delivery of certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section, and (x) any travel expenses incurred by the Company in connection with a "road show" presentation to potential investors.
(l) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market or any other national securities exchange for a period of three years after the date of this Agreement.
(jm) To use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(n) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Additional Shares Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d)) above, any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.or
Appears in 1 contract
Agreements of the Company. The Company agrees with youyou as follows:
(a) To advise The Company will notify you promptly andpromptly, and (if requested by you, to you in writing) will confirm such advice in writing, during the period of the distribution of the Offered Securities (i1) of the effectiveness of any amendment to the Registration Statement and of the filing of any supplement to the Prospectus, (2) of any comments of the Commission regarding the Registration Statement or the Prospectus (or any of the documents incorporated by reference therein) or of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceedings for that purpose, (4) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Offered Securities [or the Common Shares] [or the Guarantees] for offering offer or sale in any jurisdiction, jurisdiction or the initiation or threatening of any proceeding proceedings for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective purpose and (v5) of the happening of any event during the period referred to mentioned in Section 5(dparagraph (d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as theretofore amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as theretofore amended or supplemented) in order to make the statements therein therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the The Company will use its reasonable best efforts to prevent the issuance of any order suspending the effectiveness of the Registration Statement or suspending the qualification of the Offered Securities [or the Common Shares] [or the Guarantees] for offer or sale in any jurisdiction, and if any such order is issued, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment.
(b) To The Company will furnish to you five photocopies each of signed copies you, without charge, one conformed copy of the Registration Statement as first and any post-effective amendment thereto filed in connection with the Commission and offering of each amendment to itthe Offered Securities, including all exhibitsfinancial statements and schedules, exhibits and documents incorporated therein by reference (including exhibits incorporated therein by reference to furnish the extent not previously furnished to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably requestyou).
(c) To prepare the Prospectus, the form and substance The Company will give you advance notice of which shall be satisfactory to you, and its intention to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Registration Statement or the Prospectus of which you shall with respect to the Offered Securities, and will not previously have been advised file any such amendment or supplement to which you shall reasonably object after being so advised; provided, in writing.
(d) During the period of time that the Company shall have the right to make such further amendments as are Prospectus is required by law to be made and shall forthwith notify you delivered, the Company will deliver to each Underwriter, without charge, as many copies of the Prospectus or any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of the Prospectus which or any amendment or supplement thereto by the Underwriters and by all dealers to whom the Offered Securities may be necessary or advisable sold, both in connection with the distribution offering or sale of the Shares by you, Offered Securities and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period of time thereafter as in the opinion of counsel for the Underwriters a prospectus Prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) therewith. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, which in the opinion judgment of counsel for the Underwriters, it becomes necessary to amend Company should be set forth (or supplement incorporated by reference) in the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment thereto, and forthwith file all reports and any definitive proxy statement or supplement information statement required to be filed by the Company with the Commission pursuant to Section 13 or 14 of the Exchange Act subsequent to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light date of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable lawand during such period, and to furnish will deliver to each Underwriter and to any dealer as many Underwriter, without charge, such number of copies thereof as such Underwriter or dealer may reasonably request request. If during such period of time any event shall occur which in writingyour judgment should be so set forth (or incorporated by reference) in the Prospectus, or which in your judgment makes it necessary to so supplement or amend the Prospectus, the Company will consult with you concerning the necessity of filing with the Commission a supplement or an amendment to the Prospectus or a report pursuant to Section 13 or 14 of the Exchange Act.
(fe) Prior to any public offering of the SharesOffered Securities by the Underwriters, to the Company will cooperate with you and your counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Offered Securities [and the Common Shares] [and the Guarantees] for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of, and the determination of the eligibility of the Offered Securities for investment under the laws of, such jurisdictions as you request; provided, that in no event shall the Company be obligated to qualify to do business as a foreign corporation or as a securities dealer in any jurisdiction where it is not now so qualified, to conform its capitalization or the composition of its assets to the securities or Blue Sky laws of any jurisdiction or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject. The Company will pay all reasonable fees and expenses (including reasonable counsel fees and expenses) relating to qualification of the Offered Securities [and the Common Shares] [and the Guarantees] under such securities or Blue Sky laws and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subjectdesignate.
(gf) To mail and The Company will make generally available to its stockholders as soon as practicable an security holders and to you consolidated earnings statement covering the twelve-month period ending December 31, 2000 statements (which need not be audited) that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will pay all expenses in connection with (1) the preparation, printing and filing of the Registration Statement, any preliminary prospectus, the Prospectus, any legal investment memorandum and Blue Sky memorandum as contemplated by Section 4(e), (2) the preparation, issuance and delivery of the Offered Securities (other than transfer taxes) and the execution and delivery of the Indenture, (3) the printing of any dealer agreement, (4) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, including any term sheets delivered by the Company pursuant to Rule 434 under the Act, as may be requested for use in connection with the offering and sale of the Offered Securities by dealers to advise you whom Offered Securities may be sold, and (5) any fees paid to rating agencies, if any, selected by the Company in writing when such statement has been so made availableconnection with the rating of the Offered Securities.
(h) During the period of three years after the date of If this Agreement, to furnish to Agreement is terminated by you upon your written request copies of all reports or other communications furnished because any condition to the record holders obligations of Common Stock the Underwriters set forth in Section 7 hereof is not satisfied or furnished to because of any failure or filed with refusal on the Commission or any national securities exchange on which any class of securities part of the Company is listed and such other publicly available information concerning to comply with the terms hereof or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse the Underwriter[s] for all out-of-pocket expenses (including the fees and its subsidiaries as expenses of your counsel) reasonably incurred by the Underwriter[s] in connection herewith. The Company will not in any event be liable to you may reasonably request[or any of the Underwriters] for damages on account of loss of anticipated profits.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after From the date of this Agreement.
(j) To use its reasonable best efforts hereof to do and perform all things required or necessary to be done and performed under this Agreement by including the Company prior to the Closing Date or any Option Closing Date, as the case may beCompany will not offer or sell, and or contract to satisfy all conditions precedent to the delivery sell, any Debt Securities of the SharesCompany with a maturity of more than one year, including additional Offered Securities, pursuant to a public offering without your prior written consent.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: Underwriting Agreement (Tele Communications Inc /Co/)
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To The Company shall, if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post- effective amendment thereto to be declared effective before the offering of the Securities may commence, use its best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company shall comply fully and in a timely manner with the applicable provisions of Rule 424, Rule 430A and Rule 434 under the Act.
(b) The Company shall advise you promptly and, if requested by any of you, to confirm such advice in writing, (i) when the Registration Statement has become effective, if and when the Prospectus or form of prospectus is sent for filing pursuant to Rule 424 under the Act and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the receipt of any comments from the Commission that relate to the Registration Statement or any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectus or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of the suspension of qualification of the Shares Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposespurpose by the Commission or any state securities commission or other regulatory authority, (iii) when any amendment to the Registration Statement becomes effective, and (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(dsubsection (f) below which below, (A) of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, including the filing of any information, document or report pursuant to the Exchange Act, that makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement in order to state a material fact required by the Act to be stated therein or to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus (as then amended or supplemented) untrue or that requires the making of any additions to or changes in the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and (B) of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Company will shall use its every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company shall furnish to each of you five photocopies of signed without charge (i) two (2) conformed copies (plus one (1) additional similarly conformed copy to your legal counsel) of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits filed therewith, and to furnish to you and each Underwriter designated by you (ii) such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (iv) two (2) copies of each of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which The Company shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment or supplement to the Registration Statement and not to Statement, whether before or after the time when it becomes effective, or make any amendment or supplement to the Prospectus Prospectus, or, prior to the end of the period of time referred to in subsection (f) below, file any document pursuant to the Exchange Act that will, upon filing, become an Incorporated Document, of which you shall not previously have been advised and provided a copy within two business days (or such reasonable amount of time as is necessitated by the exigency of such amendment, supplement or document) prior to the filing thereof and to which you shall reasonably object after being so advised; providedin writing.
(e) Prior to the execution and delivery of this Agreement, that the Company shall has delivered to you, without charge, in such quantities as you have requested, copies of each form of the right Prepricing Prospectus. The Company consents to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; andthe use, during such period, to prepare and file in accordance with the Commissionprovisions of the Act and with the state securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, promptly upon your reasonable requestprior to the date of the Prospectus, any amendment to of each Prepricing Prospectus so furnished by the Company.
(f) Promptly after the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by youbecomes effective, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by law the Act to be delivered in connection with sales by an any Underwriter or a dealer, to the Company shall expeditiously furnish in New York City to each Underwriter and any dealer each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer you may reasonably requestrequest for the purposes contemplated by the Act. The Company consents to the use of the Prospectus and any amendment or supplement thereto by you or any dealer in accordance with the provisions of the Act and with the state securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering or sale of the Securities and for such period of time thereafter as a prospectus is required by the Act to be delivered in connection therewith.
(eg) If during the period specified in Section 5(d), subsection (f) above any event shall occur or condition shall exist as a result of whichwhich it becomes necessary, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus (as them amended or supplemented) in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to amend or supplement the Prospectus to comply with applicable the Act or any other law, forthwith the Company shall, as promptly as practicable, prepare and, subject to prepare and the provisions of subsection (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not not, in the light of the circumstances when it is so deliveredunder which they were made, be misleading, and the Prospectus, as so amended or so that the Prospectus supplemented, will comply with applicable the Act or such other law, and to shall expeditiously furnish to each Underwriter and to any dealer as many you without charge such number of copies thereof as such Underwriter or dealer you may reasonably request in writingrequest.
(fh) Prior to any public offering of the SharesSecurities, to the Company shall cooperate with you and with counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Securities for offer offering and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may requestrequest (provided, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to take any action that would subject it to consent to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction in which it is not now so subject). The Company shall continue such registration or qualification in effect so long as required by law for distribution of the Shares Securities and to shall file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; qualification (provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or obligated to take any action that would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the SharesSecurities, in any jurisdiction in which it is not now so subject).
(gi) To mail and The Company shall make generally available to its stockholders security holders as soon as reasonably practicable an a consolidated earnings statement covering a period of at least 12 months beginning after the twelve-month period ending December 31, 2000 "effective date" (as defined in Rule 158 under the Act) of the Registration Statement (but in no event later than 90 days after such date) that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During For so long as any of the period Securities are outstanding, the Company shall mail to each of three years after you without charge as soon as available, a copy of each report of the date of this Agreement, Company mailed to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of Commission, and (ii) during the Company is listed and period specified in subsection (f) above, from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(k) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities (other than (i) To the Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, which shall not be unreasonably withheld.
(l) The Company shall use its best efforts the proceeds from the sale of the Securities in the manner described in the Prospectus under the heading "Use of Proceeds".
(m) The Company shall not voluntarily claim, and shall actively resist any attempt to list for quotation claim, the Shares benefit of any usuary laws against the holders of the Securities.
(n) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the Nasdaq National Market and to maintain the listing part of the Shares on Company to comply with the Nasdaq National Market for a period terms or fulfill any of three years after the date conditions of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by , the Company prior agrees to reimburse you for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesUnderwriters) incurred by you in connection herewith.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe several Underwriters as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Applicable Time or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement, the Base Prospectus or the Prospectus, unless a copy thereof shall first have been submitted to the Representative within a reasonable period of time prior to the filing thereof and the Representative shall not have objected thereto in good faith.
(b) The Company will, to the extent applicable to the offer, sale or distribution of Shares, notify the Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the suspension of qualification of Base Prospectus, any preliminary prospectus, the Shares for offering Prospectus Supplement, the Prospectus or sale in any jurisdiction, Issuer Free Writing Prospectus or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effectivethreat thereof, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in the third sentence of Section 5(d4(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when in which they are made, not misleading, and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) To the extent applicable to the offer, sale or distribution of Shares, the Company will furnish to each Representative, without charge, a copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations), the Company will deliver to each of the Underwriters, without charge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to a purchaserthe Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or supplement amendment to the Prospectus so as the Representative may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus that is not approved by the Representative after reasonable notice thereof. 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 Pricing 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 in the Prospectustherein, as so amended or supplemented, will not in the light of the circumstances when it is so deliveredprevailing at that subsequent time, be not misleading, the Company will promptly notify ▇▇▇▇▇▇▇ & Company, LLC and, if requested by ▇▇▇▇▇▇▇ & Company, LLC, will promptly amend or so that the supplement, at its own expense, such Issuer Free Writing Prospectus will comply with applicable lawto eliminate or correct such conflict, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter untrue statement or dealer may reasonably request in writingomission.
(f) Prior to any public offering of the Shares, to the Company will cooperate with you the Representative and counsel for to the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state or foreign securities or Blue Sky laws of such jurisdictions as you the Representative may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subjectsubject or assume any ongoing reporting obligations to any governmental or other authorities in any jurisdiction.
(g) To mail The Company will, so long as required under the Rules and Regulations, furnish to its stockholders after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated subsidiaries, if any, certified by independent public accountants) and, after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiaries, if any, for such quarter in reasonable detail, in each case within the time period required therefor under the Exchange Act and the Rules and Regulations.
(h) The Company will make generally available to holders of its stockholders securities as soon as practicable may be practicable, but in no event later than the Availability Date (as defined below), an earnings earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the twelve-month period ending December 31, 2000 Effective Date that shall will satisfy the provisions of Section 11(a) of the ActAct (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, and to advise you in writing when such statement has been so made available.
(h) During “Availability Date” means the period of three years 45th day after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities end of the Company fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is listed and the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestfourth fiscal quarter.
(i) To Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of book entries representing the Shares, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use its best efforts to list for quotation in connection with the offering and sale of the Shares on by the Nasdaq National Market and Underwriters or by dealers to maintain whom Shares may be sold, (v) the listing of the Shares on the Nasdaq National Market NCM, (vi) any filings required to be made in connection with clearance of the offering of the Shares with FINRA (including the fees, disbursements and other charges of counsel for a period the Underwriters in connection therewith), (vii) the registration or qualification of three years after the date Shares for offer and sale under the state or foreign securities or Blue Sky laws of this Agreementsuch jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (ix) the transfer agent for the Shares, (x) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, and (xi) all other costs and expenses of the Underwriters incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriters; provided, however, that in no event shall the Company be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $100,000 in the aggregate.
(j) To use its reasonable best efforts The Company will not take, directly or indirectly, any action designed, or that might reasonably be expected, to do and perform all things required cause or necessary to be done and performed result, under this Agreement by the Act or otherwise, in, or that has constituted, stabilization or manipulation of the price of any security of the Company prior to facilitate the Closing Date sale or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery resale of the Shares.
(k) If The Company will apply the Registration Statement at net proceeds from the time offering and sale of the effectiveness Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of this Agreement does not cover all Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the SharesProspectus, without the prior written consent of ▇▇▇▇▇▇▇ & Company, LLC, the Company will not (1) offer, sell, contract to file a Rule 462(b) Registration Statement with sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Commission registering Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock option plans disclosed in the Shares not so covered Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in compliance with Rule 462(b) by 10:00 P.M., New York City time, each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
(m) During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of ▇▇▇▇▇▇▇ & Company, LLC.
(n) The Company will cause each of its executive officers, and directors and certain stockholders designated by the Representative to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of ▇▇▇▇▇▇▇ & Company, LLC, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in Schedule III hereto.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Effective Date or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by an Underwriter or dealer, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Representatives within a reasonable period of time prior to the filing thereof and the Representatives shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the Registration Statement to become effective, and will notify the Representatives promptly, and will confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effectivethreat thereof, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in the second sentence of Section 5(d6(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleadingmisleading and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or statement of additional information or the Prospectus. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment.
(bc) To The Company will furnish to you five photocopies of the Representatives, without charge, signed copies of the Registration Statement as first filed with the Commission and Notification of each amendment to itElection on Form N-54A, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so originally filed and of each amendment thereto, including financial statements, and all exhibits thereto and will furnish to itthe Representatives, without exhibitscharge, as you may reasonably request.
(c) To prepare for transmittal to each of the Prospectusother Underwriters, the form and substance a conformed copy of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any each amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; providedthereto, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectiveincluding financial statements but without exhibits.
(d) Prior to 10:00 A.M.The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for such period as in time, the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City Company will deliver to each Underwriter and any dealer of the Underwriters, without charge, as many copies of the Prospectus (and of or any amendment or supplement to thereto as the Prospectus) as such Underwriter or dealer Representatives may reasonably request.
(e) If during . The Company consents to the period specified in Section 5(d), any event shall occur or condition shall exist as a result use of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate any amendment or supplement to thereto in accordance with the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light provisions of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, 1933 Act and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such the jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of which the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement are offered by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.several Underwriters
Appears in 1 contract
Agreements of the Company. The Company agrees with youyou as follows:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement or of the suspension of qualification of the Shares Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposespurpose by the Commission or other regulatory authority, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) (A) of the happening of any event during the period referred to in Section 5(d) below which that makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances under which they are made, not misleadingmisleading and (B) of the issuance of any quarterly, annual or other financial statements by the Company (copies of which shall be delivered to you within three business days after the date of issuance). If The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the effectiveness of the Registration Statement, and if at any time the Commission or other regulatory authority shall issue any stop an order suspending the effectiveness of the Registration Statement, the Company will shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of two signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare effect the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution inclusion of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares Securities on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this AgreementMarket.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: Dealer Manager Agreement (Superior National Insurance Group Inc)
Agreements of the Company. The Company covenants and agrees with youthe several Underwriters as follows:
(a) To advise you promptly andThe Company will not, if requested either prior to the Applicable Time or thereafter during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement, the Base Prospectus or the Prospectus, unless a copy thereof shall first have been submitted to the Representative within a reasonable period of time prior to the filing thereof and the Representative shall not have objected thereto in good faith.
(b) The Company will, to the extent applicable to the offer, sale or distribution of Shares, notify the Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the suspension of qualification of Base Prospectus, any preliminary prospectus, the Shares for offering Prospectus Supplement, the Prospectus or sale in any jurisdiction, Issuer Free Writing Prospectus or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effectivethreat thereof, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in the third sentence of Section 5(d4(e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when in which they are made, not misleading, and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) To the extent applicable to the offer, sale or distribution of Shares, the Company will furnish to the Representative, without charge, an electronic copy of each of the Registration Statement and of any pre- or post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the Representative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
(d) Prior to the completion of the distribution of the Shares, the Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and Regulations), the Company will deliver to each of the Underwriters, without charge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to a purchaserthe Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to each of the Underwriters, without charge, such number of copies of such supplement or supplement amendment to the Prospectus so that as the statements in Representative may reasonably request. The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as so amended a result of which such Issuer Free Writing Prospectus conflicted or supplementedwould conflict with the information contained in the Registration Statement, will not the Pricing 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 when it is so deliveredprevailing at that subsequent time, be not misleading, the Company will promptly notify N▇▇▇▇▇▇ & Company, LLC and, if requested by N▇▇▇▇▇▇ & Company, LLC, will promptly amend or so that the supplement, at its own expense, such Issuer Free Writing Prospectus will comply with applicable lawto eliminate or correct such conflict, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter untrue statement or dealer may reasonably request in writingomission.
(f) Prior to any public offering of the Shares, to the Company will cooperate with you the Representative and counsel for to the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state or foreign securities or Blue Sky laws of such jurisdictions as you the Representative may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subjectsubject or assume any ongoing reporting obligations to any governmental or other authorities in any jurisdiction.
(g) To mail The Company will, so long as required under the Rules and Regulations, furnish to its stockholders after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail, in each case within the time periods required therefor under the Exchange Act and the Rules and Regulations
(h) The Company will make generally available to holders of its stockholders securities as soon as practicable may be practicable, but in no event later than the Availability Date (as defined below), an earnings earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the twelve-month period ending December 31, 2000 Effective Date that shall will satisfy the provisions of Section 11(a) of the ActAct (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, and to advise you in writing when such statement has been so made available.
(h) During “Availability Date” means the period of three years 45th day after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities end of the Company fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is listed and the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestfourth fiscal quarter.
(i) To Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses incurred by the Company of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, if applicable, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, and all amendments and supplements thereto, as may be requested for use its best efforts to list for quotation in connection with the offering and sale of the Shares on by the Nasdaq National Market and Underwriters or by dealers to maintain whom Shares may be sold, (iv) the listing of the Shares on the Nasdaq National Market NGSM, (v) any filings required to be made in connection with clearance of the offering of the Shares with FINRA, (vi) the registration or qualification of the Shares for a period offer and sale under the state or foreign securities or Blue Sky laws of three years after such jurisdictions designated pursuant to Section 4(f) and the date preparation, printing and distribution of this Agreementany Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda, (vii) documented fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters) and of the Accountant, (viii) the transfer agent for the Shares, and (ix) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of any of the Underwriters.
(j) To use its reasonable best efforts The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to do and perform all things required cause or necessary result in, or that will constitute, stabilization of the price of the shares of Common Stock to be done and performed under this Agreement by facilitate the Company prior to the Closing Date sale or resale of any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of N▇▇▇▇▇▇ & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, other than (A) the Shares to be sold hereunder, (B) any shares of common stock of the Company issued upon the exercise of options, vesting of restricted stock or settlement of restricted stock units granted under the Company’s stock incentive plans described in the Registration Statement at Statement, the time Pricing Disclosure Package and the Prospectus, (C) any options and other awards granted under any such stock incentive plans, (D) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to any such stock incentive plan and (E) shares of common stock or other securities of the effectiveness Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or equity of another entity (whether by merger, consolidation, acquisition of equity interests or otherwise), provided that (x) the aggregate number of shares issued pursuant to this Agreement does clause (E) shall not cover all exceed ten percent (10%) of the Sharestotal number of outstanding shares of Stock immediately following the issuance and sale of the Firm Shares pursuant hereto and (y) the recipient of any such shares of common stock or securities issued pursuant to this clause (E) during the 90-day restricted period described above shall enter into an agreement substantially in the form set forth in Schedule IV hereto.
(m) During the period of 90 days after the date of the Prospectus, to the Company will not file a Rule 462(b) Registration Statement with the Commission registering or cause to become effective any registration statement relating to any securities of the Shares not so covered Company without the prior written consent of the Representative other than the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to the Company’s stock incentive plans described in compliance the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(n) The Company will cause each of its executive officers and directors to enter into lock-up agreements with Rule 462(b) by 10:00 P.M.the Representative to the effect that they will not, New York City timewithout the prior written consent of N▇▇▇▇▇▇ & Company, on LLC, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares in substantially the date of this Agreementform set forth in Schedule IV hereto.
Appears in 1 contract
Sources: Underwriting Agreement (Ultra Clean Holdings, Inc.)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of ___ signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) and any documents incorporated therein by reference as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders security holders as soon as practicable an earnings statement covering the twelve-month period ending December 31__________, 2000 199_ that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During So long as the Shares are outstanding, (i) to make generally available as soon as practicable after the end of each fiscal year to the record holders of the Shares a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by independent public accountants and (ii) to make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of three years after such year to the date close of this Agreementsuch quarterly period, together with comparable information for the corresponding periods of the preceding year.
(i) So long as the Shares are outstanding, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record its security holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Shares and all costs and expenses incident to the listing of the Shares on [the Nasdaq National Market/NYSE/AMEX] [and other national securities exchanges and foreign stock exchanges], (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including the Depository Trust Company), and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section 5(i).
(k) To use its best efforts to [list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market Market] [list, subject to notice of issuance, the Shares on the NYSE/AMEX and to maintain the listing of the Shares on the NYSE/AMEX] for a so long as the Securities are outstanding.]
(l) During the period of three years after beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of this Agreementany Preferred Stock of the Company or any warrants, rights or options to purchase or otherwise acquire Preferred Stock of the Company substantially similar to the Shares (other than the Shares), without the prior written consent of a majority of the unaffiliated Representatives.
(jm) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date [or any Option Closing Date, as the case may be, ,] and to satisfy all conditions precedent to the delivery of the Shares.
(kn) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(o) The company will, for so long as any of the Preferred Stock is outstanding and if, in the reasonable judgement of any Underwriter, such Underwriter or any of its affiliates (as defined in the Act) is required to deliver a prospectus in connection with sales of Preferred Stock (i) periodically amend the Registration Statement so that the information contained in the Registration Statement complies with the requirements of Section 10(a) of the Act, (ii) amend the Registration Statement or amend or supplement the Prospectus when necessary to reflect any material changes in the information provided therein and promptly file such amendment or supplement with the commission, (iii) provide such Underwriter with copies of each amendment or supplement so filed and such other documents, including opinion of counsel and "comfort" letter, as such Underwriter may reasonably request and (iv) indemnify such Underwriter and if applicable, contribute to any amount paid or payable by such Underwriter in a manner substantially identical to the specified in Section 7 hereof (with appropriate modifications).
Appears in 1 contract
Sources: Underwriting Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Agreements of the Company. The Company covenants and agrees with youthe several Underwriters that:
(a) To The Company will endeavor to cause the Registration Statement to become effective and will advise you the Representatives promptly and, if requested by youthe Representatives, to will confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment to it becomes effective, and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments Prospectus or supplements to the any Preliminary Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes, (iii) when any amendment to the Registration Statement becomes effective, and (iv) if within the Company is required period of time referred to file a Rule 462(bin paragraph (f) Registration Statement after the effectiveness of this Agreementbelow, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to make the statements therein therein, in light of the circumstances under which they were made (in the case of the Prospectus), not misleadingmisleading or the necessity to amend or supplement the Prospectus to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment. If the Company elects to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that complies with the requirements of Rule 434 of the Act and will provide the Representatives with copies of the form of Rule 434 Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in Chicago on the business day immediately succeeding the date hereof. If the Company elects not to rely on Rule 434, the Company will provide you with copies of the form of Prospectus in such numbers as you may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act, by the close of business in Chicago on the business day immediately succeeding the date hereof.
(b) To furnish to you five photocopies of signed copies of If, at the time that the Registration Statement as first filed becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Act, then promptly following the execution of the Pricing Agreement, the Company will prepare and file with the Commission Commission, in accordance with Rule 430A and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further copies of an amended Prospectus, or, if required by Rule 430A, a post-effective amendment to the Registration Statement and (including an amended Prospectus) containing all information so omitted.
(c) Neither the Company nor any of its subsidiaries will, prior to the earlier of the Option Closing Date or termination or expiration of the related option, incur any liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you the Representatives shall not previously have been advised or to which you the Representatives shall reasonably object promptly after being so advised; providedadvised reasonably object in writing.
(e) Prior to the effective date of the Registration Statement, that the Company shall has delivered or will deliver to each of the Underwriters, without charge, copies of each form of Preliminary Prospectus in such quantities as they have reasonably requested or may hereafter reasonably request. The Company consents to the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; anduse, during such period, to prepare and file in accordance with the Commissionprovisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, promptly upon your reasonable requestprior to the effective date of the Registration Statement, any amendment to of each Preliminary Prospectus so furnished by the Company.
(f) On the effective date of the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for during such period as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is required by law to be delivered in connection with offers or sales of the Shares by an Underwriter or a dealer, to furnish in New York City the Company will deliver to each Underwriter and any dealer dealer, without charge, as many copies of the Registration Statement, the Prospectus and each Preliminary Prospectus and the Incorporated Documents (and of any amendment or supplement to the Prospectussuch documents) as such Underwriter or dealer they may reasonably request.
(e) If during the period specified in Section 5(d). During such period, if any event shall occur occurs which in the judgment of the Company, or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement should be set forth in the Prospectus in order to ensure that no part of the Prospectus includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances when at the time the Prospectus is delivered to a purchaser, not misleading, or ifthe Company will forthwith prepare, in submit to the opinion of counsel for the UnderwritersRepresentatives, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment and deliver, without charge to the several Underwriters and dealers (whose names and addresses will be furnished by the Representatives to the Company) to whom shares have been sold by the Underwriters or supplement to other dealers any amendments or supplements to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not comply with the standards set forth in this sentence. The Company consents to the use of such Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions described in the light preliminary Blue Sky memorandum in which the Shares are lawfully offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the circumstances when it is so delivered, be misleading, or so that Shares and for such period of time thereafter as the Prospectus will comply with applicable lawis required by law to be delivered in connection therewith. In case any Underwriter is required to deliver a Prospectus (and any amendment or supplement thereto) more than nine months after the first date upon which the Shares are offered to the public, the Company will, upon request, but at the expense of such Underwriter, promptly prepare and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingwith reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you the Representatives and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Representatives may requestdesignate, to will continue such registration registrations or qualification qualifications in effect so long as reasonably required for the distribution of the Shares and to will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated (i) to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified qualified, (ii) to file any general consent to service of process, or to (iii) take any action that would subject it to general consent to service of process or income taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subjectqualified.
(gh) To mail For a period of three years after the date of the Pricing Agreement:
(i) the Company will furnish to the Representatives (A) as soon as available, a copy of each report of the Company of general interest mailed to any class of its security holders (B) copies of all annual reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and any amendment thereto or such other similar forms as may be designated by the Commission and (C) from time to time, such other information concerning the Company as the Representatives may reasonably request;
(ii) if at any time during such three year period, the Company shall cease filing with the Commission the annual reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i) above, the Company will forward to its stockholders generally and the Representatives and upon request to each of the other Underwriters (A) as soon as practicable after the end of each fiscal year, copies of a balance sheet and statements of income and retained earnings of the Company as of the end of and for such fiscal year, certified by independent public accountants, and (B) as soon as practicable after the end of each quarterly fiscal period, except for the last quarterly fiscal period in each fiscal year, a summary statement (which need not be certified) of income and retained earnings of the Company for such period, which shall also be made publicly available; and
(iii) the Company will furnish to the Representatives and to the NASD, and by issuance of a press release, on the date of declaration, notice of all dividends, including the amount and medium of payment, the record date (which shall be not less than ten days subsequent to the declaration date) and the payment date (which shall be not less than ten days subsequent to the record date).
(i) The Company will make generally available to its stockholders security holders an earnings statement of the Company, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, Act and to advise you in writing when such statement has been so made available.
(h) During the period rules and regulations of three years after the date of this Agreement, to furnish to you upon your written request copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
thereunder (i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreementincluding Rule 158).
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than by notice given by the Company prior Representatives' termination of this Agreement pursuant to Section 10 hereof), or if this Agreement shall be terminated by the Closing Date several Underwriters because of any failure or any Option Closing Date, as refusal on the case may be, and to satisfy all conditions precedent to the delivery part of the SharesCompany to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the several Underwriters for all out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) reasonably incurred by them in connection herewith but without any further obligation of the Company for lost profits or otherwise. If this Agreement is terminated pursuant to Section 10 hereof, the several Underwriters shall themselves bear any such out-of-pocket expenses incurred by them.
(k) If the Registration Statement at the time The Company will not sell, contract to sell or otherwise dispose of the effectiveness any Common Stock or rights to purchase Common Stock for a period of this Agreement does not cover all of the Shares, to file a Rule 462(bninety (90) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on days after the date of the Pricing Agreement without the prior written consent of the Representatives, except that such consent is not required for the grant of stock options under stock option plans of the Company or the issuance of Common Stock upon exercise of stock options previously granted, upon exercise of Common Stock purchase rights or the issuance of Common Stock as consideration for acquisitions. The Company will also obtain similar agreements from each of its officers and directors.
(l) The Company will apply the net proceeds from the sale of the shares to be sold by it under this AgreementAgreement and the Pricing Agreement for the purposes set forth in the Prospectus under the caption "Use of Proceeds."
(m) The Company will use its best efforts, subject to notice of issuance, to cause the Shares to be approved for quotation on the Nasdaq Stock Market.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Managers as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post- effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or amendments or supplements to the Prospectus Prospectuses or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below event, which makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge (i) four signed copies of the Registration Statement registration statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibitsexhibits to the registration statement, and to furnish to you and each Underwriter designated by you such (ii)such number of conformed copies of the Registration Statement registration statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) four copies of the exhibits to the Incorporated Documents.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, The Company will not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus Prospectuses or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectiveobject.
(de) Prior to 10:00 A.M.the execution and delivery of this Agreement, New York City timethe Company has delivered to you, on without charge, in such quantities as you have requested, copies of each form of the first business day after International Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Managers and by dealers, prior to the date of the International Prospectus, of each International Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus Managers an International Prospectus is required by law the Act to be delivered in connection with sales by an Underwriter any Manager or a dealer, to furnish in New York City the Company will expeditiously deliver to each Underwriter Manager and any dealer each dealer, without charge, as many copies of the International Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the Prospectususe of the International Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as such Underwriter the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer may reasonably request.
(e) dealer. If during the such period specified in Section 5(d), of time any event shall occur that in the judgment of the Company or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary Managers is required to amend be set forth in the International Prospectus (as then amended or supplement the Prospectus supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend the International Prospectus (or supplement to file under the Prospectus Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or supplement to such document), and will expeditiously furnish to the Prospectus so Managers and dealers a reasonable number of copies thereof. In the event that the statements in the ProspectusCompany and you, as so Lead Managers for the several Managers, agree that the International Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers Managers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters Managers and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed Commission, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Managers because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Lead Managers for all out-of-pocket expenses (including fees and expenses of counsel for the Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares substantially in accordance with the description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) The Company will not sell, contract to sell or otherwise dispose of any Common Stock, or any securities convertible into or exercisable or exchangeable for Common Stock or grant any options or warrants to purchase Common Stock, for a period of 120 days after the date hereof, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., except for sales to the Closing Date or any Option Closing Date, as Managers pursuant to this Agreement and the case may be, and to satisfy all conditions precedent U.S. Underwriters pursuant to the delivery U.S. Underwriting Agreement.
(n) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current officers and directors and each of its stockholders designated by you.
(o) Except as stated in this Agreement and in the U.S. Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(kp) If The Company will use its best efforts to satisfy on or before the Registration Statement at Closing Date all conditions to the time Managers' obligations to purchase the Shares.
(q) The Company will use its best efforts to have the shares of the effectiveness of Common Stock which it agrees to sell under this Agreement does not cover all listed, subject to notice of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City timeissuance, on the date of this AgreementNew York Stock Exchange on or before the Closing Date.
Appears in 1 contract
Sources: International Underwriting Agreement (Converse Inc)
Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for either of such purposes, (iii) when any amendment to the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to in Section 5(d) below which that makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five photocopies of (5) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be reasonably satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which that may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M.a.m., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; providedPROVIDED, howeverHOWEVER, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as practicable an earnings earning statement covering the twelve-month period ending December 31September 30, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to furnish to you upon your written request as soon as available copies of all reports or other communications furnished to the record holders of Common Stock or furnished to or filed with the Commission or any national securities exchange or national system for quotation on which any class of securities of the Company is listed or quoted, as the case may be, and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Shares under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares, (iv) all expenses in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (v) the filing fees and disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Shares by the National Association of Securities Dealers, Inc., (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to the listing of the Shares on the Nasdaq National Market, (vii) the cost of printing certificates representing the Shares, (viii) the costs and charges of any transfer agent, registrar and/or depositary, and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(j) To use its best efforts to list include for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(jk) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(kl) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M.p.m., New York City time, on the date of this AgreementAgreement and to pay to the Commission the filing fee for such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(m) That in connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three (3) months following the date of the effectiveness of the Registration Statement. DLJ will notify the Company as to which Participants will need to be so restricted. The Company will direct the removal of such transfer restrictions upon the expiration of such period of time.
(n) To pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with DLJ that the Company will comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Managers as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission of which the Company has knowledge for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or amendments or supplements to the Prospectus Prospectuses or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose of which the Company has knowledge; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during the period referred to in Section 5(d) below which event, that makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge four (4) signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibits, exhibits to the Registration Statement and to will also furnish to you and each Underwriter designated by you you, without charge, such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may reasonably request.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bThe Company will not (i) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised; providedadvised or (ii) so long as, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the written opinion of counsel for the Underwriters Managers a prospectus is required by law to be delivered in connection with sales by an Underwriter any Manager or a dealer, file any information, documents or reports pursuant to furnish the Exchange Act, without delivering a copy of such information, documents or reports, to you, as Lead Managers for the Managers, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in New York City such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the International Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by dealers, prior to the date of the International Prospectus, of each International Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the Managers (a copy of which shall be delivered to the Company) an International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer, the Company will expeditiously deliver to each Underwriter Manager and any dealer each dealer, without charge, as many copies of the International Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer you may reasonably request.
. The Company consents to the use of the International Prospectus (eand of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, that in the judgment of the Company or in the written opinion of counsel for the Underwriters, it becomes necessary Managers (a copy of which shall be delivered to amend the Company) is required to be set forth in the International Prospectus (as then amended or supplement the Prospectus supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the International Prospectus in to comply with applicable the Act or any other law, the Company will forthwith prepare and, subject to prepare and the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment or supplement thereto, and will expeditiously furnish to the Prospectus so Managers and dealers a reasonable number of copies thereof. In the event that the statements in the ProspectusCompany and you, as so Lead Managers for the several Managers, agree that the International Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the Underwriters at the expense of the Sellers Managers in connection with the registration or qualification of the Shares for offer offering and sale by the several Underwriters Managers and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders as soon as practicable an security holders a consolidated earnings statement statement, which need not be audited, covering the a twelve-month period commencing after the effective date of the Registration Statement and ending December 31not later than 15 months thereafter, 2000 that as soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to Shareholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed Nasdaq National Market, and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(ij) To use its best efforts If this Agreement shall terminate or shall be terminated after execution pursuant to list for quotation any provisions hereof (otherwise than pursuant to the Shares second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the Managers because of any failure or refusal on the Nasdaq National Market part of the Company or any of the Selling Shareholders to comply in any material respect with the terms or fulfill in any material respect any of the conditions of this Agreement, the Company agrees to reimburse the Lead Managers for all reasonable out-of-pocket expenses (including reasonable fees and to maintain expenses of counsel for the listing Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares on to be sold by it hereunder substantially in accordance with the Nasdaq National Market for description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will timely file the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) For a period of three years 180 days after the date hereof (the "Lock-Up Period"), the Company will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock, except for (i) the Company's issuance of shares of Common Stock in connection with the reclassification of its Common Stock, (ii) the Company's issuance of shares of its Common Stock in connection with the approximate 5.51 for 1 stock split, (iii) the Company's issuance of shares of Common Stock upon exercise of the Warrants, (iv) the issuance of Common Stock upon the exercise of stock options granted, or the grant of stock options under the Company's Stock Option Plan (and the filing of a Form S-8 Registration Statement with respect to such shares of common stock), and (v) the sale to the U.S. Underwriters pursuant to the U.S. Underwriting Agreement and to the Managers pursuant to this Agreement.
(jn) To The Company has furnished or will furnish to you "lock-up" letters, in form and substance reasonably satisfactory to you, signed by each of its current officers and directors and each of ( ).
(o) Except as stated in this Agreement and in the U.S. Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its reasonable best efforts to do and perform all things required have the Common Stock listed, subject to notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the registration statement.
(q) The Company will use its best efforts to satisfy on or necessary to be done and performed under this Agreement by the Company prior to before the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of Managers' obligations to purchase the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this Agreement.
Appears in 1 contract
Sources: International Underwriting Agreement (Telegroup Inc)
Agreements of the Company. The Company agrees with youthe several U.S. Underwriters as follows:
(a) To If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, to will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendments amendment of or a supplement to the Registration Statement Statement, any Prepricing Prospectuses or amendments or supplements to the Prospectus Prospectuses or for additional information, ; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or the initiation of any proceeding for such purposes, purpose; and (iii) when within the period of time referred to in paragraph (f) below, of any amendment to change in the Registration Statement becomes effectiveCompany's condition (financial or other), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness business, prospects, properties, net worth or results of this Agreementoperations, when the Rule 462(b) Registration Statement has become effective and (v) or of the happening of any event during event, including the period referred filing of any information, documents or reports pursuant to in Section 5(d) below which the Exchange Act, that makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(bc) To The Company will furnish to you five photocopies of you, without charge, three signed copies of the Registration Statement as first originally filed with the Commission and of each amendment to itthereto, including financial statements and all exhibits, exhibits to the Registration Statement and to will also furnish to you and each Underwriter designated by you you, without charge, such number of conformed copies of the Registration Statement as so originally filed and of each amendment to itthereto, but without exhibits, as you may reasonably request.
(cd) To prepare the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(bThe Company will not (i) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to or make any amendment or supplement to the Prospectus Prospectuses of which you shall not previously have been advised or to which you shall reasonably object in writing after being so advised; providedadvised or (ii) so long as, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the written opinion of counsel for the U.S. Underwriters (a copy of which shall be delivered to the Company), a prospectus is required by law to be delivered in connection with sales by an any U.S. Underwriter or a dealer, file any information, documents or reports pursuant to furnish the Exchange Act, without delivering a copy of such information, documents or reports to you, as Representatives of the U.S. Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in New York City such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each U.S. Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the written opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to each U.S. Underwriter and any dealer each dealer, without charge, as many copies of the U.S. Prospectus (and of any amendment or supplement to the Prospectusthereto) as such Underwriter or dealer you may reasonably request.
. The Company consents to the use of the U.S. Prospectus (eand of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several U.S. Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer. If during the such period specified in Section 5(d), of time any event shall occur or condition shall exist as a result of which, that in the judgment of the Company or in the written opinion of counsel for the Underwriters, it becomes necessary U.S. Underwriters is required to amend be set forth in the U.S. Prospectus (as then amended or supplement the Prospectus supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the U.S. Prospectus to comply with applicable the Act or any other law, forthwith the Company will make every reasonable effort to prepare and and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment or supplement thereto and will expeditiously furnish to the Prospectus so U.S. Underwriters and dealers a reasonable number of copies thereof. In the event that the statements in the ProspectusCompany and you, as so Representatives of the several Underwriters, agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will not in promptly issue a press release announcing or disclosing the light of matters to be covered by the circumstances when it is so delivered, be misleading, proposed amendment or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingsupplement.
(fg) Prior to any public offering of the Shares, to The Company will cooperate with you and with counsel for the U.S. Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares for offer offering and sale by the several U.S. Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request, to continue such registration or qualification in effect so long as required for distribution of the Shares reasonably designate and to will file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided, however, provided that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to general consent taxation or to service of process or taxation in suits, other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or those arising out of the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(gh) To mail and The Company will make generally available to its stockholders security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as reasonably practicable an after the end of such period, which consolidated earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
(hi) During the period of three five years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) as soon as available, a copy of all reports or other communications furnished each report of the Company mailed to the record holders of Common Stock or furnished to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed New York Stock Exchange and (ii) from time to time such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(ij) To use its best efforts If this Agreement shall terminate or shall be terminated after execution pursuant to list for quotation any provisions hereof (otherwise than pursuant to the Shares second paragraph of Section 12 hereof or by notice given by you terminating this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the Nasdaq National Market part of the Company or any of the Selling Shareholders to comply, in any material respect, with the terms or fulfill, in any material respect, any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and to maintain expenses of counsel for the listing U.S. Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares on to be sold by it hereunder substantially in accordance with the Nasdaq National Market for description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will make every reasonable effort to timely file the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of the time and manner of such filing.
(m) For a period of three years 180 days after the date hereof (the "Lock-up Period"), the Company will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) or grant any options or warrants to purchase Common Stock that are exercisable during the Lock-up Period, except for (i) sales to the U.S. Underwriters pursuant to this Agreement and the Managers pursuant to the International Underwriting Agreement, (ii) the issuance of Shares upon exercise of outstanding options and [(iii) the issuance of Shares in connection with acquisitions, provided that the recipients of such Shares agree not to sell the Shares during the Lock-up Period.]
(n) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its current executive officers and directors and each of its stockholders designated by you.
(jo) To use its reasonable best efforts to do and perform all things required or necessary to be done and performed under Except as stated in this Agreement by and in the International Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the Company prior has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Closing Date price of the Common Stock to facilitate the sale or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery resale of the Shares.
(kp) If The Company will use its best efforts to have the Registration Statement at Common Stock listed, subject to notice of issuance, on the time of New York Stock Exchange concurrently with the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of this AgreementStatement.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe Underwriter as follows:
(a) To advise you promptly andThe Company will not, if requested during such period as the Prospectus is required by youlaw to be delivered in connection with sales of the Shares by an Underwriter or a dealer (the “Prospectus Delivery Period”), file any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Underwriter within a reasonable period of time prior to the filing thereof and the Underwriter shall not have objected thereto in good faith.
(b) The Company will notify the Underwriter promptly, and will confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement becomes effective, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding proceedings for such purposes, (iii) when any amendment to that purpose or the Registration Statement becomes effectivethreat thereof, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreement, when the Rule 462(b) Registration Statement has become effective and (v) of the happening of any event during the period referred to mentioned in Section 5(dthe second sentence of subsection (e) below which that in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein therein, in light of the circumstances in which they are made, not misleadingmisleading and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its make every reasonable best efforts effort to obtain the withdrawal or lifting of such order at the earliest possible timemoment. The Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and to notify the Underwriter promptly of all such filings.
(bc) To furnish The Company has furnished, or will furnish, to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to itUnderwriter, including all exhibitswithout charge, and to furnish to you and each Underwriter designated by you such number of two conformed copies of the Registration Statement as so filed and of each any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to it, without exhibits, as you may reasonably request.
(c) To prepare be incorporated by reference into the Prospectus, the form and substance of which shall be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which you shall not previously have been advised or to which you shall reasonably object after being so advised; provided, that the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you of any such amendment; and, during such period, to prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or amendment or supplement to the Prospectus which may be necessary or advisable in connection with the distribution of the Shares by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective).
(d) Prior to 10:00 A.M.The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, New York City time, on the first business day after the date of this Agreement and thereafter from time to time thereafter for such period as in time, the opinion of counsel for Company will deliver to the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealerUnderwriter, to furnish in New York City to each Underwriter and any dealer without charge, as many copies of the Prospectus (and of or any amendment or supplement to thereto as the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If . The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriter and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and during the period specified in Section 5(d)Prospectus Delivery Period. If, during the Prospectus Delivery Period any event shall occur or condition shall exist as a result of which, that in the opinion judgment of the Company or counsel for to the Underwriters, it becomes necessary to amend or supplement Underwriter should be set forth in the Prospectus in order to make the statements any statement therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which it was made, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to supplement or amend or supplement the Prospectus to comply with applicable law, the Company will forthwith to prepare and duly file with the Commission an appropriate supplement or amendment or supplement thereto, and will deliver to the Prospectus so that the statements in the ProspectusUnderwriter, as so amended or supplementedwithout charge, will not in the light such number of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such the Underwriter or dealer may reasonably request in writingrequest. The Company shall not file any document under the Exchange Act before the termination of the offering of the Shares by the Underwriter if such document would be deemed to be incorporated by reference into the Prospectus and if such document is not approved by the Underwriter after reasonable notice thereof.
(f) Prior to any public offering of the SharesShares by the Underwriter, to the Company will cooperate with you the Underwriter and counsel for to the Underwriters at the expense of the Sellers Underwriter in connection with the registration or qualification of the Shares for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as you the Underwriter may request, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in no event shall the Company shall not be required in connection therewith obligated to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Shares, in any jurisdiction in which where it is not now so subject.
(g) To mail During the period of two years commencing on the date of the Price Determination Agreement, the Company will furnish to the Underwriter copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Underwriter a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its stockholders securities as soon as may be practicable but in no event later than the last day of the 15th full calendar month following the calendar quarter in which the “effective date of the Registration Statement” (as defined in Rule 158 of the Rules and Regulations) falls, an earnings statement covering (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after such “effective date of the twelve-month period ending December 31, 2000 that shall satisfy Registration Statement” and satisfying the provisions of Section 11(a) of the Act, Act (including Rule 158 of the Rules and to advise you in writing when such statement has been so made availableRegulations).
(hi) The Company will not at any time, directly or indirectly, take any action intended, or that might reasonably be expected, to cause or result in, or which will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(j) The Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement, to the Underwriter an “electronic Prospectus” to be used by the Underwriter in connection with the offering and sale of the Shares. As used herein, the term “electronic Prospectus” means a form of Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Underwriter, that may be transmitted electronically by the Underwriter to offerees and purchasers of the Shares for at least the Prospectus Delivery Period; (ii) it shall disclose the same information as the paper Prospectus and Prospectus filed pursuant to ▇▇▇▇▇, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Underwriter, that will allow investors to store and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative within the Prospectus Delivery Period, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Prospectus.
(k) During the 90-day period of three years after beginning on the date of this Agreement, the Company will not without the prior written consent of the Underwriter (which consent may be withheld at the sole discretion of the Underwriter), directly or indirectly, sell, offer, contract or grant any option to furnish to you upon your written request copies sell, pledge, transfer or establish an open “put equivalent position” within the meaning of all reports Rule 16a-1(h) under the Exchange Act, or other communications furnished to otherwise dispose of or transfer, or file with the record holders Commission a registration statement under the Act relating to, any shares of Common Stock or furnished securities convertible into or exchangeable for any shares of Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, transfer, disposition or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
filing, except for (i) To use its best efforts issuances pursuant to list for quotation the Shares on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things required employee or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Shares, to file a Rule 462(b) Registration Statement with the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, director compensation plans existing on the date of this Agreement, including issuances pursuant to the exercise of stock options outstanding on the date of this Agreement, (ii) grants of employee or director stock options pursuant to the terms of a plan in effect on the date of this Agreement, (iii) issuances pursuant to the exercise of such employee or director stock options, (iv) the filing of registration statements on Form S-8 and amendments thereto in connection with such employee or director stock options or the Company’s employee stock purchase plans in existence on the date of this Agreement, (v) issuances pursuant to employee thrift plans or direct stock purchase or dividend reinvestment plans in place on the date of this Agreement and (vi) the issuance of shares of Common Stock or options in acquisitions in which the acquiror of such shares or options agrees to the foregoing restrictions.
(l) The Company has engaged and shall maintain, at its expense, a registrar and transfer agent for the Common Stock.
(m) The Company and its Subsidiaries will keep and maintain books, records and accounts that accurately and fairly reflect, in reasonable detail, transactions in and dispositions of the assets of the Company and its Subsidiaries. The Company and each of its Subsidiaries will maintain an adequate internal control structure, procedures for financial reporting and a system of internal accounting control sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company and its Subsidiaries, (iii) access to the assets of the Company and its Subsidiaries is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accounts of the assets of the Company and its Subsidiaries are compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(n) The Company and its Subsidiaries will maintain such controls and other procedures, including without limitation, those required by Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its Chief Executive Officer or officers and Principal Financial Officer or officers, or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company, including its Subsidiaries, is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(o) The Company and its Subsidiaries will take all such steps as may be necessary to enable it to be in substantial compliance with all effective applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
Appears in 1 contract