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 agrees with you:
(a) To advise you promptly andwill, upon request of ------------------------- Abbott, execute such financing statements and other documents (and pay the cost of filing or recording the same in all public offices reasonably deemed appropriate by Abbott) and do such other acts and things, all as Abbott may from time to time reasonably request, to establish and maintain a valid security interest in the Collateral (free of all other liens, claims and rights of third parties whatsoever) to secure the payment of the Liabilities; (b) will keep all its Inventory at, and will not maintain any place of business at any location other than, its address(es) shown on Schedules I and II hereto or at ----------- -- such other addresses of which the Company shall have given Abbott not less than 10 days' prior written notice, (c) will keep its records concerning the Non-Tangible Collateral in such a manner as will enable Abbott or its designees to determine at any time the status of the Non-Tangible Collateral; (d) will furnish Abbott such information concerning the Company, the Collateral and the Account Debtors as Abbott may from time to time reasonably request; (e) will permit Abbott and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice during the existence of a Default) to inspect the Company's Inventory pledged hereunder, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of the Company pertaining to the Collateral, and will, upon request of Abbott during the existence of a Default, deliver to Abbott all of such records and papers;(f) except for the sale or lease of Inventory in the ordinary course of its business and sales of Equipment which is no longer useful in its business or which is being replaced by similar Equipment, will not sell, lease, assign or create or permit to exist any lien or security interest on any Collateral; (g) will at all times keep all of its Inventory pledged hereunder insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, and cause all such policies to provide that loss thereunder shall be payable to Abbott as its interest may appear (it being understood that (A) so long as no Default exists, Abbott shall deliver any proceeds of such insurance which may be received by it to the Company and (B) whenever a Default exists, Abbott may apply any proceeds of such insurance which may be received by it toward payment of the Liabilities, whether or not due, in such order of application as Abbott may determine), and such policies or certificates thereof shall, if requested by youAbbott so requests, be deposited with or furnished to confirm Abbott; (h) will take such advice actions as are reasonably necessary to keep its Inventory pledged hereunder in writinggood repair and condition; (i) will take such actions as are reasonably necessary to keep its Equipment pledged hereunder in good repair and condition and in good working order, ordinary wear and tear excepted; (j) will promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment pledged hereunder and other Goods; (k) will, upon request of Abbott, (i) cause to be noted on the applicable certificate, in the event any of any request its Equipment is covered by a certificate of title, the Commission for amendments to security interest of Abbott in the Registration Statement or amendments or supplements to the Prospectus or for additional informationEquipment covered thereby, and (ii) deliver all such certificates to Abbott or its designees; (l) will take all steps reasonably necessary to protect, preserve and maintain all 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 its rights 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 Collateral; (m) 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 keep all of the Sharestangible Collateral in the United States; and (n) will reimburse Abbott for all expenses, including reasonable attorney's fees and charges, incurred by Abbott in seeking to file a Rule 462(b) Registration Statement with collect or enforce any rights in respect of the Commission registering Collateral. Any expenses incurred in protecting, preserving or maintaining any Collateral shall be borne by 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 AgreementCompany.
Appears in 3 contracts
Sources: National Marketing and Distribution Agreement (Retractable Technologies Inc), National Marketing and Distribution Agreement (Retractable Technologies Inc), National Marketing and Distribution Agreement (Retractable Technologies 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 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 Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview 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 Grandview within a reasonable period of time prior to the filing thereof and Grandview 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 Grandview 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 Grandview, 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 Grandview (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 Grandview 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 Grandview 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 Grandview, 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 Grandview, 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 Grandview 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 Grandview.
(r) Upon the Closing, the Company will grant Grandview 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 Grandview accepts such right of first refusal, Grandview 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 Grandview 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 Grandview 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 3 contracts
Sources: Underwriting Agreement (Green Solutions China, Inc.), Underwriting Agreement (China Green, Inc.), Underwriting Agreement (China Green, 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 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 Xxxxnced Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Financed Xxxdent 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 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. 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 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.its
Appears in 2 contracts
Sources: Underwriting Agreement (Goto Com Inc), Underwriting Agreement (Goto Com 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 xxxx its records relating to the Financed Eligible Loans and shall cause the Servicer and NLS to xxxx 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 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 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 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) Xxxxx Xxxxxxx LLP (“Xxxxx Xxxxxxx”), as legal counsel; (B) Young Xxxxxxx Stargatt & Xxxxxx, LLP (“YCST”), as Delaware counsel; and sale by (C) Duff & Xxxxxx 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 Xxxxx Xxxxxxx, 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 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. (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 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 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. The Company shall bear the cost of any amendment to the Registration Statement or amendment or supplement to, or delivery of, the Prospectus pursuant to Section 5(c) above, this Section 5(d) or Section 5(e) below for any such amendment or supplement made within twelve months of the date of this Agreement, and thereafter, the Company's out-of-pocket costs incurred pursuant to any such amendment or supplement shall be borne by the Underwriters.
(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 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 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 2 contracts
Sources: Underwriting Agreement (Nextcard Inc), Underwriting Agreement (Nextcard 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 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 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 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 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 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 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 and 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; and 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) as you may reasonably request; provided, however, that in case any Underwriter or dealer is so required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, the preparation and delivery of such copies of the Prospectus (and of any amendment or supplement to the Prospectus) as you so request shall be at the expense of such Underwriter or dealer may reasonably requestdealer.
(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, upon your request 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 you may reasonably request; provided, however, that in case any Underwriter or dealer is required to deliver a prospectus in connection with the sale of any of the Shares at any time nine months or more after the time of issue of the Prospectus, the preparation and delivery of such copies of the Prospectus (and of any amendment or supplement to the Prospectus) as you so request shall be at the expense of such Underwriter or dealer may reasonably request in writingdealer.
(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 but in any event not later than eighteen months after the "effective date of the Registration Statement" (as defined in Rule 158(c) under the Act), an earnings statement covering the twelve-month period ending December 31, 2000 (which need not be audited) that shall satisfy the provisions of Section 11(a) of the Act (including, at the option of the Company, 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 five 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 generally or non-confidential reports, financial statements and other communications 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) Regardless of whether the transactions contemplated in this Agreement are consummated or this Agreement is terminated, and except as otherwise provided herein, 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 the reasonable fees, charges and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto),
(v) the filing fees, fees, charges 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) the fees, if any, and expenses, if any, of the QIU (including the fees, charges and disbursements of counsel to the QIU), 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. It is understood, however, that, except as provided in this Section 5 and Sections 8, 9 and 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make.
(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 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.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 (Jfax Com Inc), Underwriting Agreement (Jfax Com 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 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 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 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 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 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, 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 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 (E Stamp Corp), Underwriting Agreement (E Stamp 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 (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 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 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 Shares on the Nasdaq National Market and to maintain the listing performance of the Shares on the Nasdaq National Market for a period of three years after the date of Sellers' obligations under this Agreement.
, including: (ji) To use its reasonable best efforts to do the fees, disbursements 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 expenses of the Shares.
(k) If Company's counsel, 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.Company's accountants and any
Appears in 1 contract
Sources: Underwriting Agreement (Dura Automotive Systems Inc)
Agreements of the Company. The (a) During the Support Period, the Company agrees with youto:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by support and take all steps necessary and desirable to consummate the Commission for amendments to Restructuring Transactions in accordance with this Agreement, including complying with the Registration Statement or amendments or supplements to the Prospectus or for additional information, Milestones set forth herein;
(ii) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the issuance Restructuring, negotiate in good faith and take all reasonable steps necessary or reasonably requested by the Commission Consenting Creditors to address any such impediment, including (1) timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of any stop an order suspending (A) directing the effectiveness appointment of an examiner with expanded powers or a trustee, (B) converting the Chapter 11 Cases to a case under chapter 7 of the Registration Statement Bankruptcy Code, (C) dismissing the Chapter 11 Cases, (D) approving an Alternative Restructuring, or of the suspension of qualification of the Shares (E) for offering or sale relief that (x) is inconsistent with this Agreement in any jurisdictionmaterial respect, or (y) would, or would reasonably be expected to, frustrate 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 purposes of this Agreement, when including by preventing the Rule 462(bconsummation of the Restructuring Transactions; (2) Registration Statement has become effective timely filing a formal objection to any motion filed with the Bankruptcy Court by any Person seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of the Plan; (3) timely filing a formal objection to any motion, application or proceeding challenging (A) the amount, validity, allowance, character, enforceability or priority of any Claims of any of the Consenting Creditor, or (B) the validity, enforceability or perfection of any lien or other encumbrance securing any Claim of any of the Consenting Creditors; and (v4) timely filing a formal written response in opposition to any objection filed with the Bankruptcy Court by any Person with respect to the DIP Facility (or motion filed by such Person that seeks to interfere with the DIP Facility) or any adequate protection granted to the Consenting Creditors pursuant to the Interim DIP Order, the Final DIP Order or otherwise;
(iii) negotiate in good faith and use commercially reasonable efforts to execute, deliver, perform its obligations under, and consummate the transactions contemplated by the Definitive Documents;
(iv) promptly notify counsel to the Consenting Creditors in writing (and in any event within one (1) business day after obtaining knowledge thereof) of (1) the initiation, institution or commencement of any proceeding by a Governmental Entity or other Person (or communications indicating that the same may be contemplated or threatened) (x) involving the Company (including any assets, businesses, operations or activities of any the Company) or any of their respective current or former officers, employees, managers, directors, members or equity holders (in their capacities as such), or (y) challenging the validity of the transactions contemplated by this Agreement or any other Definitive Document or seeking to enjoin, restrain or prohibit this Agreement or any other Definitive Document or the consummation of the transactions contemplated hereby or thereby, (2) any material breach by the Company in any respect of any of its obligations, representations, warranties or covenants set forth in this Agreement, (3) any Material Adverse Effect, (4) the happening or existence of any event during that shall have made any of the period referred conditions precedent to any Party’s obligations set forth in Section 5(d(or to be set forth in) below which makes any statement of the Definitive Documents incapable of being satisfied prior to the Effective Date Milestone, (5) the occurrence of a material fact made in Termination Event and/or (6) the Registration Statement receipt of notice from any Governmental Entity; or other Person alleging that 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 consent 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 Person is 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 required under any Organizational Document, contract, Law or advisable otherwise in connection with the distribution consummation of any part of the Shares by youRestructuring Transactions;
(v) maintain the good standing and legal existence under the Laws of the state in which each Company is incorporated, and to use its reasonable best efforts to cause any such amendment organized or formed, except to the Registration Statement extent that any failure 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 maintain 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 Company’s good standing arises solely 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 filing 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.Chapter 11 Cases;
(fvi) Prior respond 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 commercially reasonable diligence requests requested 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 Ad Hoc Group Advisors as soon as reasonably practicable an earnings statement covering after receipt thereof;
(vii) except (1) with the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) consent of the ActRequisite Consenting Creditors or (2) as required by Law, (v) use commercially reasonable efforts to conduct its business and operations only in the ordinary course in a manner that is consistent with past practices and in compliance with Law, except for any failure to advise you operate its business and operations in writing when such statement has been so made available.
(h) During the period ordinary course in a manner that is consistent with past practice as a result of three years after the date preparation and implementation of the Restructuring Transactions consistent with the terms of this Agreement, (w) use commercially reasonable efforts 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 maintain their physical assets, equipment, properties and facilities in their condition and repair as of the Company is listed Effective Date, ordinary wear and such tear excepted, (x) maintain their respective books and records on a basis consistent with prior practice, (y) maintain all material insurance policies, or suitable replacements therefor, in full force and effect, and (z) comply in all material; respects with, perform all of their respective obligations under, and maintain in full force and effect, each Material Contract (other publicly available information concerning than any Material Contract that has expired after the Company Effective Date in accordance with its terms and its subsidiaries except as you may reasonably request.expressly contemplated in the Restructuring Term Sheet); and
(iviii) To use its best efforts if any Debtor receives an unsolicited proposal or expression of interest with respect to list for quotation an Alternative Restructuring, within two (2) Business Days after the Shares on receipt of such proposal or expression of interest, notify the Nasdaq National Market and to maintain the listing Ad Hoc Group Advisors of the Shares on receipt thereof, with such notice to include the Nasdaq National Market for a period of three years after the date of this Agreementmaterial terms thereof.
(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: Restructuring Support Agreement (Core Scientific, Inc./Tx)
Agreements of the Company. The Company agrees with youyou as follows:
(a) To The Company will 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 The Company will furnish to you five photocopies of such 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 The Company will 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, the Company will 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 the Company will 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.Registration
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 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 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 Xxxxx Xxxxxx 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 covenants and agrees with youthe Initial Purchasers that:
(a) To advise you promptly and, The Company will make no further amendment or supplement to the Offering Memorandum except as permitted herein; and if requested by you, at any time prior to confirm such advice in writing, the earlier of (i) the completion of any request the distribution of the Notes by the Commission for amendments to the Registration Statement Initial Purchasers or amendments or supplements to the Prospectus or for additional information, (ii) 120 days after the Closing Date any event shall have occurred as a result of which the Offering Memorandum, as then amended or supplemented, would, in the judgment 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, Initial Purchasers or the initiation of any proceeding for such purposesCompany, (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 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 purchaserunder which they were made, 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 Initial Purchaser 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 DateCompany, as the case may be, will promptly notify the other and to satisfy all conditions precedent the Company will promptly prepare and deliver to the delivery of the SharesInitial Purchasers an amendment or supplement that will correct such untrue statement or omission.
(kb) If The Company shall advise the Registration Statement at Initial Purchasers promptly and, if requested, will confirm such advice in writing, (i) of any proposal to amend or supplement the time Offering Memorandum and will afford the Initial Purchasers a reasonable opportunity to comment on any such proposed amendment or supplement, (ii) of receipt by the Company of any notification with respect to the suspension of the effectiveness of this Agreement does not cover all qualification of the SharesNotes for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose and (iii) of any downgrading in the rating accorded the Notes by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act, 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.an "NRSRO"), New York City time, on the date of this Agreement.or any public announcement that any such organization
Appears in 1 contract
Sources: Purchase Agreement (Plainwell Inc)
Agreements of the Company. The Company agrees with youyou that:
(a) To It will, if the Registration Statement has not heretofore become effective under the Act, and, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under 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 will use
(b) It will advise you promptly and, if requested by you, to confirm such advice in writing, (i) if and when the Prospectus is sent for filing pursuant to Rule 424 under the Act (including any term sheet within the meaning of Rule 434 under the Act), when the Registration Statement has become effective, when any Rule 462 Registration Statement is filed and becomes effective, and when any post-effective amendment to it becomes effective, (ii) of the receipt of any comment that relates to the Registration Statement from the Commission or any other regulatory authority or any request by the Commission for amendments 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 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 purposespurposes by the Commission or any state securities commission or regulatory authority, (iiiiv) 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 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(d5(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 in order to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus (as amended or supplemented from time to time) untrue or which requires the making of any additions to or changes in the Prospectus (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If The Company will use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of the Shares 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 other regulatory authority shall issue an order suspending the Company will use its reasonable best efforts to obtain the withdrawal qualification 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 exemption of the Shares by you, and to use its reasonable best efforts to cause under 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 Prospectuslaws, 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.Company
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, 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 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 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, : (i) when any post-effective amendment to the Registration Statement becomes effective, but only during the period mentioned in Section 4(b); (ii) 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 Offered Securities 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); (iiiii) 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, (iii) when any amendment to but only during the Registration Statement becomes effective, period mentioned in Section 4(b); (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 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 Statement, the Pricing Disclosure Materials or the Prospectus untrue in any material respect or which that requires the making of any additions to or changes in the Registration Statement Statement, the Pricing Disclosure Materials 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 during the period mentioned in Section 4(b) 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 commercially reasonable best efforts 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 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 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 Pricing Disclosure Materials, 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the 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 Prospectus, the Pricing Disclosure Materials 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 4(b) hereof, will promptly prepare and file with the Commission Commission, at the Company’s expense, an appropriate amendment to the Registration Statement, an amendment or supplement to the Pricing Disclosure Materials 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, be misleadingupon request, or so that to the Prospectus will comply Placement Agent 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; 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 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 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.
(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 The Company will not make any offer relating to the record holders of Common Stock or furnished to or filed Offered Securities that would constitute an Issuer Free Writing Prospectus without consulting 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 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) The Company will apply the net proceeds from the offering and sale of the Offered Securities in the manner set forth in the Pricing Disclosure Materials and the Prospectus under the caption “Use of Proceeds.”
(k) The Company will use its best efforts to list for quotation ensure that the Shares Offered Securities are listed or quoted on the Nasdaq National 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 of this Agreement does Closing.
(l) The Company will not cover all 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 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 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., 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 make generally available to its stockholders as soon as practicable an earnings statement covering the twelve-month period ending December 31June 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 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 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 XXXXX, 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 XXXXX 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 agrees with you:
(a) To advise you The Registration Statement has become effective, and if Rule 430A is used or the filing of the Final Prospectus is otherwise required under Rule 424(b), the Company will file the Final Prospectus (properly completed if Rule 430A has been used), subject to the prior approval of the Underwriters, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to the Underwriters promptly andfollowing such filing.
(b) 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 Underwriters within a reasonable period of time prior to the filing thereof and the Underwriters 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, : (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 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 the Final 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 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 Company or counsel to the Underwriters, 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 for to the Company or counsel to the Underwriters, 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 any other reason it is necessary necessary, in the reasonable judgment of counsel to the Company or counsel to the Underwriters, 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 Underwriters 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 Underwriters, without charge, such number of copies thereof as the Underwriters may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Underwriters, and the Underwriters agree to provide to each Investor, prior to the Closing, a copy of the Final Prospectus and any amendments or supplements thereto.
(e) The Company will furnish to the Underwriters 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 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 the Underwriters may reasonably request.
(f) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements in the Prospectustherein, as so amended or supplemented, will not in the light of the circumstances when it is so deliveredexisting at that subsequent time, be not misleading, the Company will promptly notify the Representative and will promptly amend or so that supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(g) The Company will promptly notify the Prospectus Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the Act and (ii) completion of the 180-day restricted period referred to in Section 4(o).
(h) 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.
(fi) 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 Underwriters.
(j) 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 to avoid a requirement to file with the Commission any electronic road show.
(k) Prior to any public offering the sale of the SharesShares to the Investors, 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 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 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.
(gl) 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) 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 sale of the Shares on in the Nasdaq National Market for a period manner set forth in the Final Prospectus under the caption “Use of three years after the date of this AgreementProceeds.”
(jm) To The Company will use its reasonable best efforts to do and perform all things required ensure that the Shares are listed for trading on Nasdaq at the time of the Closing.
(n) The Company will not at any time, directly or necessary indirectly, take any action intended, or which might reasonably be expected, to be done and performed under this Agreement by cause or result in, or which will constitute, stabilization of the Company prior price of the Shares to facilitate 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.
(ko) If The Company will not, directly or indirectly, without the Registration Statement at the time prior written consent of the effectiveness Underwriters, offer to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, or otherwise dispose of this Agreement does not cover all (or announce any offer, sale, grant of any option or warrant to purchase or other disposition), any shares of capital stock of the SharesCompany or securities convertible into, to file 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 Shares to be sold hereunder, (ii) the issuance of shares of Common Stock upon the exercise of stock options and warrants outstanding as of the date hereof and the issuance of Common Stock or stock options under any employee benefit or stock incentive plan of the Company existing on the date hereof, and described in the Final Prospectus, (iii) the issuance of Common Stock or stock options under any non-employee director stock plan or dividend reinvestment plan described in the Final Prospectus, (iv) the filing by the Company of any registration statement on Form S-8 or a successor form thereto, or (v) the issuance of any shares of Common Stock by the Company in connection with a licensing agreement, joint venture, acquisition or business combination or other collaboration or strategic transaction (including the filing of a registration statement on Form S-4 or other appropriate form with respect thereto), provided, however that recipients of such shares of Common Stock agree to be bound by the terms of the lock-up letter described in Section 7(xi) hereof and the sum of the aggregate number of shares of Common Stock so issued shall not exceed 10% of the total outstanding shares of Common Stock outstanding immediately following the consummation of this offering of Shares. If the Representative agrees to waive or release any Lock-Up Securities from the Lock-Up Period, the Company will announce the impending release or waiver by press release through a major news service at least two business days before the effective date of such release or waiver.
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), 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 31June 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) 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 costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show, presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered (with the approval of the Company) in connection with the road show, (x) 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, 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; PROVIDED, HOWEVER, that except for the Company's specific payment obligation under this Section 5(i), the Underwriters agree to pay all of their own costs and expenses, including without limitation the fees and expenses of their counsel, incurred in connection with the transactions contemplated by this Agreement .
(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) To place stop transfer orders on any Directed Shares that have been sold to Participants subject to the three month restriction on sale, transfer, assignment, pledge or hypothecation imposed by NASD Regulation, Inc. under its Interpretative Material 2110-1 on free-riding and withholding to the extent necessary to ensure compliance with the three-month restrictions.
(n) To comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Sources: Underwriting Agreement (Embarcadero Technologies Inc)
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, 0000 Xxxxxxxx Xxxxxx, 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. 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 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 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
(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 in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, the standards set forth in this sentence. The Company consents to the use of such Prospectus (and to furnish to each Underwriter and to of any dealer as many copies thereof as such Underwriter amendments or dealer may reasonably request in writing.supplements thereto) in
(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 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 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 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(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 cause the Shares to be approved for quotation on the National Market System of The Nasdaq Stock Market, Inc.
Appears in 1 contract
Agreements of the Company. The Company agrees with youthe several Underwriters as follows:
(a) To The Company will endeavor to cause the Registration Statement to become effective and will advise you the Underwriters promptly and, if requested by youthe Underwriters, to will confirm such advice in writing, (iA) 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, (B) 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, (iiC) 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, or the initiation or contemplation known to the Company 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 (vD) within the period of time referred to in paragraph (f) below, 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, the Trust Indenture 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.
(b) To If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Act, then promptly following the execution of this Agreement, the Company will prepare and file with the Commission, in accordance with Rule 430A and Rule 424(b) under the Act, copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(c) The Company will furnish to you five photocopies of the Underwriters, without charge, three signed copies of the Registration Statement as first filed with the Commission and of each amendment to itthereto, including all exhibitsexhibits thereto, and to will also furnish to you and the Underwriters, without charge, for transmittal to each Underwriter designated by you of the other Underwriters such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, thereto as you the Underwriters 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 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 the Underwriters 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 Debentures 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 is required by law to be delivered in connection with offers or sales of the Debentures 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 an appropriate amendment 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 Debentures 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 Debentures are lawfully offered by the several Underwriters and by all dealers to whom Debentures may be sold, both in connection with the offering or sale of the circumstances when it is so delivered, be misleading, or so that Debentures 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 Debentures are offered to the public, the Company will, upon the request of the Underwriters and to at the expense of the Company, 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 Underwriters and counsel for the Underwriters at the expense of the Sellers in connection with the registration or qualification of the Shares Debentures 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 (i) to register or qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or (ii) to take file 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 subjectprocess.
(gh) To mail and 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 availablethe rules and regulations of the Commission thereunder (including Rule 158).
(hi) During the For a period of three five years after the date of this Agreement, to :
(1) 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 reports or other communications furnished to the record holders of Common Stock or furnished to or and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and any amendment thereto or any national securities exchange on which any class of securities of the Company is listed and such other publicly available similar forms as may be designated by the Commission and (3) from time to time, such other information concerning the Company and its subsidiaries as you the Underwriters may reasonably request.;
(2) 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 (1) above, the Company will forward to its stockholders generally and the Underwriters and upon request to each of the other Underwriters (i) To use its best efforts to list for quotation as soon as practicable after the Shares on the Nasdaq National Market end of each fiscal year, copies of a balance sheet and to maintain the listing statements of income and retained earnings of the Shares on Company as of the Nasdaq National Market end of and for a period of three years such fiscal year, certified by independent public accountants, and (ii) as soon as practicable after the date end of this Agreementeach 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.
(j) 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 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, (i) preparation, printing, filing and distribution (including 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 agreements and the Indenture, (ii) furnishing to the several Underwriters and dealers copies of the foregoing materials as reasonably requested by the Underwriters, (iii) the registrations or qualifications referred to in paragraph (g) 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 Memoranda, (iv) the review of the terms of the public offering of the Debentures by 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, (v) the performance by the Company prior of its other obligations under this Agreement, including the fees of the Company's counsel and accountants, (vi) the issuance of the Debentures and the preparation and printing of the certificates representing the Debentures, (vii) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Debentures, (viii) all fees and expenses associated with obtaining credit ratings on the Debentures, (ix) 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 Debentures, (x) furnishing to the Closing Date or any Option Closing Dateseveral Underwriters copies of all reports and information required by paragraph (i) above, as including reasonable costs of shipping and mailing and (xi) the case may be, and fees payable to satisfy all conditions precedent to The American Stock Exchange (the delivery "AMEX") in connection with the listing of the SharesDebentures on the AMEX.
(k) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than by notice given by the Underwriters to terminate this Agreement pursuant to Section 9 hereof), 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; provided, however, that the Company's reimbursement obligation pursuant to this Section 5(k) shall not exceed $100,000. If this Agreement is terminated pursuant to Section 9 hereof, the several Underwriters shall themselves bear any such out-of-pocket expenses incurred by them.
(l) The Company will apply the net proceeds from the sale of the Debentures to be sold by it under this Agreement for the purposes set forth in the Prospectus under the caption "Use of Proceeds."
(m) If at any time during the 25-day period after the Registration Statement at becomes effective or the time period prior to the Option Closing Date, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the effectiveness Company's Common Stock has been or is likely to be materially affected (regardless of this Agreement does not cover all whether such rumor, publication or event necessitates a supplement to or amendment of the SharesProspectus), the Company will, after written notice from you advising the Company to file the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a Rule 462(bpress release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(n) Registration Statement with The Company will cause the Commission registering the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, Debentures to be listed on the date of this AgreementAMEX prior to the Firm Closing Date. The Company will ensure that the Debentures remain listed on the AMEX following the Firm Closing Date.
Appears in 1 contract
Agreements of the Company. The Company agrees with youeach of the Underwriters as follows:
(a) To advise you promptly andThe Company will prepare a supplement to the Prospectus setting forth the amount of the Series 2004-1 Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Series 2004-1 Notes are to be purchased by the Underwriters, either the initial public offering price or the method by which the price at which the Series 2004-1 Notes are to be sold will be determined, the selling concessions and reallowances, if requested by youany, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Series 2004-1 Notes, and the Company will timely file such supplement to confirm such advice in writingthe prospectus with the SEC pursuant to Rule 424(b) under the Securities Act, (i) of but the Company will not file any request by the Commission for amendments to the Registration Statement as in effect with respect to the Series 2004-1 Notes or any amendments or supplements to the Prospectus Prospectus, unless it shall first have delivered copies of such amendments or for additional informationsupplements to the Underwriters, (ii) of with reasonable opportunity to comment on such proposed amendment or supplement or if the issuance by Underwriters shall have reasonably objected thereto promptly after receipt thereof; the Commission of any stop order suspending Company will immediately advise the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, Underwriters or the initiation of any proceeding for such purposes, Underwriters' counsel (iiii) when notice is received from the SEC that any post-effective amendment to the Registration Statement becomes has become or will become effective; and (ii) of any order or communication suspending or preventing, (iv) if or threatening to suspend or prevent, the offer and sale of the Series 2004-1 Notes or of any proceedings or examinations that may lead to such an order or communication, whether by or of the SEC or any authority administering any state securities or Blue Sky law, as soon as the Company is advised thereof, and will use its best efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when the Prospectus relating to the Series 2004-1 Notes 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 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 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 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 state a 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, 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 Securities 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 Series 2004-1 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 Series 2004-1 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 Series 2004-1 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 Series 2004-1 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 SharesSeries 2004-1 Notes, 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 Series 2004-1 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 Series 2004-1 Notes by the rating agency or agencies that initially rate the Series 2004-1 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 Series 2004-1 Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Series 2004-1 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 Series 2004-1 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 Series 2004-1 Notes to facilitate the sale or resale of the Series 2004-1 Notes.
(m) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Financed Student Loans and shall cause each Servicer to mark their respective computer records relating to the Financed Student Loans to show the absolute ownership by the Eligible Lender Trustee, as eligible lender of, and the interest of the Company in, the Financed Student Loans, 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.
(n) 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 Series 2004-1 Notes) collateralized by Financed Student Loans.
(o) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Securities 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 Securities Act, copies of an amended Prospectus containing all information so omitted.
(p) 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 Securities 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
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 if 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 an 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(c) 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 untrue (as then amended or which supplemented) or 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 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 opinion of counsel of the several 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 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 the such period specified in Section 5(d), of time any event shall occur 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 in suits, 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 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. In each jurisdiction in which the Shares shall have been qualified as above provided, the Company will make and file such statements and reports in each year as are or may be required by the laws of such jurisdiction. 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 12- 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 Rule 158 under the Act, and to will advise you in writing when such statement has been so made available.
(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 (i) as soon as practicable after the end of all reports each fiscal year a copy of its Annual Report on Form 10-K, (ii) 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 mailed to stockholders, and (iii) from time to time such other information concerning the Company as you may reasonably request. Until the termination of the offering of the Shares, the Company will timely file all documents, and any amendments to previously filed documents, required to be filed by it pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(i) 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.
(j) 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.
(k) The Company will not sell, contract to sell or otherwise dispose of any Common Stock or rights to purchase Common Stock until after the date 180 days from the effective date of the Registration Statement, without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc., except to the underwriters pursuant to this Agreement, and except that the Company may issue Common Stock upon the exercise or conversion of warrants, stock options, preferred stock or convertible debentures issued and outstanding at the time of effectiveness of the Registration Statement and described in the Registration Statement, and except that the Company may grant options under the Company's Stock Option Plans.
(l) The Company will not, directly or indirectly, take any action that would constitute, or any action designed, or which might reasonably be expected to cause or result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(m) If at any time during the 90-day period after the first date that any of the Shares are released by you for sale to the public, any rumor, publication, or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock (including the Shares) has been or is likely to be materially affected (regardless of whether such rumor, publication, or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you of advising the Company to the effect set forth above, promptly consult with you concerning the advisability and substance of, and, if appropriate, disseminate, a press release or other public statement responding to or commenting on such rumor, publication, or event.
(n) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Shares, or otherwise conduct its business, in such a manner as would require the Company or any Subsidiary (as defined below) to register as an investment company under the Investment Company Act of 1940, as amended.
(o) The Company will maintain a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of the Nasdaq National Market or any national securities exchange on which any class of securities of the Company Common Stock is listed then listed, a registrar (which, if permitted by applicable laws and such other publicly available information concerning rules, may be the Company and same entity as the transfer agent) for its subsidiaries as you may reasonably requestCommon Stock.
(ip) To use its best efforts The Company hereby agrees that this Agreement shall be deemed, for all purposes, to list for quotation have been made and entered into in Pinellas County, Florida. The Company agrees that any dispute hereunder shall be litigated solely in the Shares on the Nasdaq National Market and to maintain the listing Circuit Court of the Shares on State of Florida in Pinellas County, Florida or in the Nasdaq National Market United States District Court for a period the Middle district of three years after the date of this Agreement.
(j) To use its reasonable best efforts Florida, Tampa Division, and further agrees to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior submit itself to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery personal jurisdiction of the Sharessuch courts.
(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 Underwriter:
(a) To Beginning on the date hereof and continuing until the date that, in the opinion of counsel for the Underwriters, a prospectus is (other than by reason of the exemption in Rule 172 under the Securities Act) no longer required by the Securities Act to be delivered in connection with sales of the Shares by the Underwriters or a dealer (the “Prospectus Delivery Period”), the Company will advise you promptly the Representatives promptly, and, if requested by youthe Representatives, to confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Statutory Prospectus or Prospectus or any Issuer Free Writing Prospectus or any amendment to the Statutory Prospectus or Prospectus has been filed; (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 the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information, ; (iiiv) upon receipt of notice of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any preliminary prospectus, any documents contained in the suspension of qualification of Pricing Disclosure Package or the Shares for offering or sale in any jurisdiction, Prospectus or the initiation or threatening of any proceeding for such purposes, (iii) when any amendment that purpose or pursuant to Section 8A of 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 Securities Act; (v) of the happening occurrence of any event during as a result of which the period referred to in Section 5(d) below which makes Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any 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 state a material fact necessary in order to make the statements therein therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading. If at ; (vi) of the receipt by the Company of any time notice of objection of the Commission shall issue to the use of the Registration Statement or any stop post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the Company use of any Statutory Prospectus, any documents contained in the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will use its reasonable best efforts to obtain as soon as possible the withdrawal or lifting of such order at the earliest possible timethereof.
(b) To furnish to you the Representatives five photocopies of signed conformed copies of the Registration Statement as first filed with the Commission and of each amendment to itit during the Prospectus Delivery Period, including all exhibitsexhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you the Representatives such number of conformed copies of the Registration Statement as so filed and of each such amendment to it, without exhibitsexhibits but including documents incorporated therein by reference, as you the Representatives may reasonably request.
(c) To prepare the Statutory Prospectus and the Prospectus, the form and substance of which shall be reasonably satisfactory to youthe Representatives, and to file the Statutory Prospectus and 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) belowProspectus Delivery Period, 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 Representatives shall not previously have been advised or to which you the Representatives 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 the Representatives’ 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, the Underwriters and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effective. The Company has complied and will comply with the requirements of Rule 433 applicable to any Issuer Free Writing Prospectus. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(d) Prior to 10:00 A.M.a.m., New York City time, on the first second business day after the date of this Agreement and from time to time thereafter for such period as in during 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 dealerProspectus Delivery Period, to furnish in New York City to each Underwriter the Underwriters and any dealer as many copies of the Prospectus (and of any amendment or supplement to the ProspectusProspectus and any documents incorporated therein by reference) as such Underwriter the Underwriters or any 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 whichProspectus Delivery Period, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state any material fact necessary 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 the Underwriters and to any dealer as many copies thereof as such Underwriter the Underwriters or any dealer may reasonably request in writingrequest.
(f) Prior to any public offering of the Shares, to To 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 United States 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 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 that shall satisfy the provisions of Section 11(a) of the Securities Act beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158 under the Securities Act, and to advise you in writing when such statement has been so made available) of the Registration Statement.
(h) During the For a period of three years after one year from the date of this Agreement, to furnish to you upon your written request the Representatives as soon as available copies of all reports or other communications furnished the Company furnishes to its security holders or public reports or other public communications the record holders of Common Stock or furnished Company furnishes to or filed files with the Commission or any national securities exchange on which any class of securities of the Company is listed (except for so long as the Company is subject to the reporting requirements of either Section 13 or 15 of the Exchange Act, and such communications are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system (or any successor thereto), the Company shall not be required to furnish to the Representatives such communications) and such other publicly available information concerning the Company and its subsidiaries as you the Representatives may reasonably request.
(i) To use (A) 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 its best efforts obligations hereunder, including without limitation, (i) the costs incident to list for quotation the Shares on the Nasdaq National Market authorization, sale, preparation and to maintain the listing delivery of the Shares on and any taxes payable in that connection; (ii) 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 costs incident to the Closing Date or any Option Closing Datepreparation, as printing and filing under the case may be, and to satisfy all conditions precedent to the delivery Securities Act of the Shares.
Registration Statement, the preliminary prospectus, any Issuer Free Writing Prospectus, the Pricing Disclosure Package and the Prospectus (kincluding all exhibits, amendments and supplements thereto) If and the Registration Statement at distribution thereof; (iii) the time fees and expenses of the effectiveness of this Agreement does not cover all of Company’s counsel and independent accountants; (iv) the Shares, to file a Rule 462(b) Registration Statement fees and expenses incurred in connection 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.the
Appears in 1 contract
Sources: Underwriting Agreement (Standard Pacific Corp /De/)
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 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 subsidiary 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 Shares on performance of the Nasdaq National Market 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 maintain the listing 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) 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 a period of three years after the date which provision is not otherwise made in this Section. The provisions of this AgreementSection shall not supercede 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 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 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, 0000 Xxxxxxxx Xxxxxx, 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 ------------------------- Initial Purchasers that:
(a) To advise you promptly and, The Company will make no further amendment or supplement to the Offering Memorandum except as permitted herein; and if requested by you, at any time prior to confirm such advice in writing, the earlier of (i) the completion of any request the distribution of the Notes by the Commission for amendments to the Registration Statement Initial Purchasers or amendments or supplements to the Prospectus or for additional information, (ii) 180 days after the Closing Date any event shall have occurred as a result of which the Offering Memorandum, as then amended or supplemented, would, in the judgment 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, Initial Purchasers or the initiation of any proceeding for such purposesCompany, (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 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 purchaserunder which they were made, not misleading, each Initial Purchaser or ifthe Company, as the case may be, will promptly notify the other and the Company will promptly prepare and deliver to the Initial Purchasers an amendment or supplement that will correct such untrue statement or omission.
(b) The Company shall advise the Initial Purchasers promptly and, if requested, will confirm such advice in the opinion writing, (i) of counsel for the Underwriters, it is necessary any proposal to amend or supplement the Prospectus Offering Memorandum and will afford the Initial Purchasers a reasonable opportunity to comply comment on any such proposed amendment or supplement, (ii) of receipt by the Company of any notification with applicable lawrespect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose and (iii) of any downgrading in the rating accorded the Notes by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act, forthwith an "NRSRO"), or any public announcement that ----- any such organization has under surveillance or review its rating of the Notes (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating) as soon as the Company learns of any such downgrading or announcement.
(c) The Company will promptly deliver to prepare the Initial Purchasers, without charge, such number of copies of the Offering Memorandum and file all amendments of and supplements thereto as the Initial Purchasers may reasonably request.
(d) Whether or not required by the rules and regulations of the Commission, so long as any Notes are outstanding and so long as the Indenture so requires, the Company will (i) furnish holders of the Notes (A) all quarterly and annual financial information that would be required to be contained in a filing with the Commission an appropriate amendment or supplement on Forms 10-Q and 10-K, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the Prospectus so annual information only, a report thereon by the Company's certified independent accountants, and (B) all financial information that would be required to be included in a Form 8-K filed with the statements Commission, and (ii) file a copy of all such information and reports with the Commission for public availability (unless the Commission will not accept such a filing) and to make such information available to investors or potential investors in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when Company's debt securities who request 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.
(he) During the period of three years after referred to in paragraph (d), the date of this Agreement, to Company will furnish to you upon your written request copies the Initial Purchasers as soon as available a copy of all reports each report or other communications furnished publicly available information of the Company mailed to the record security holders of Common Stock or furnished to the Company 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 Initial Purchasers may reasonably request.
(if) To use its best efforts Without the prior consent of Bear, Xxxxxxx & Co. Inc., prior to list for quotation the Shares on the Nasdaq National Market and to maintain the listing expiration of the Shares on the Nasdaq National Market for a period of three years 180 days after the date of this Agreementthe Offering Memorandum the Company will not offer, sell, contract to sell or otherwise dispose of any note or debenture similar to the Notes having a maturity of more than one year (other than the Registered Notes).
(jg) To use its reasonable best efforts to The Company shall do and perform perform, or cause to be done or performed, 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.
(h) The Company shall use its best efforts in cooperation with the Initial Purchasers to (i) permit the Notes to be eligible for clearance and settlement through the facilities of DTC, Euroclear and Cedel Bank and (ii) include quotation of the Notes on the Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market of the National Association of ------ Securities Dealers, Inc.
(i) The Company will use its best efforts to take such actions as are necessary to enable Standard & Poor's Corporation ("S&P") and Xxxxx'x Investors --- Service, Inc. ("Moody's") to provide their respective initial credit ratings on ------- the Notes.
(j) None of the Company, any of its affiliates or any person acting on behalf of any of them (it being understood that no representation is given as to the conduct of the Initial Purchasers and their respective affiliates) will solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act, except in either case as contemplated by the Exchange and Registration Rights Agreement.
(k) If None of the Registration Statement Company, any of its affiliates or any person acting on behalf of any of them (it being understood that no representation is given as to the conduct of the Initial Purchasers and their respective affiliates) will, directly or indirectly, offer, sell, solicit offers to buy or sell or otherwise negotiate in respect of any security (as defined in the Securities Act) which will be integrated with the sale of any of the Notes in a manner that would require the registration of any of the Notes under the Securities Act.
(l) During the period of two years after the Closing Date (or such other period as the Notes in general constitute "restricted securities" within the meaning of Rule 144 under the Securities Act) it will, upon request, furnish to the Initial Purchasers and any holder of Notes a copy of the restrictions on transfer applicable to the Notes.
(m) The Company will not, and will not permit any of its affiliates to, resell any of the Notes that have been acquired by any of them and that constitute "restricted securities" within the meaning of Rule 144 of the Securities Act, except outside the United States in accordance with Regulation S, pursuant to an exemption from the registration requirements of the Securities Act or in a transaction registered under the Securities Act.
(n) Neither the Company nor any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Notes or attempt to induce any person to purchase any Notes, and neither the Company nor any of its affiliates will make bids or purchase Notes for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(o) Each of the Notes will bear a legend substantially in the form contained in the section captioned "Notice to Investors" in the Offering Memorandum for the time period and upon the other terms stated therein; provided, however, that such legend will be removed upon request to the Trustee or the security registrar under the Indenture after such Notes are resold pursuant to a registration statement that has been declared effective by the Commission under the Securities Act.
(p) For so long as any of the Notes constitute "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will make available to any holder of the Notes or to any prospective purchaser of the Notes designated by any holder, upon request of such holder or prospective purchaser, information required to be provided by Rule 144A(d)(4) under the Securities Act if at the time of such request the effectiveness of this Agreement does Company is not cover all subject to the reporting requirements under Section 13 or 15(d) of the Shares, to file a Rule 462(bExchange Act.
(q) Registration Statement The Company will use the proceeds from the sale of the Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(r) The Company will comply with the Commission registering agreements in the Shares not so covered Transaction Documents to which it is a party except where the failure to comply would not, individually or in compliance with Rule 462(b) by 10:00 P.M.the aggregate, New York City time, have a material adverse effect on the date condition (financial or otherwise), results of this Agreementoperations, business or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
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 Grandview, pursuant to Rule 424(b) within the prescribed time period and will provide a copy of such filing to Grandview 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 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 Grandview within a reasonable period of time prior to the filing thereof and Grandview 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 Offered 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 Offered 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 Grandview 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 Offered 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 Grandview, which consent will not be unreasonably withheld, conditioned or delayed, make any offer relating to the Offered 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 Grandview (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 SharesOffered Shares to the Investors, to the Company will cooperate with you Grandview and counsel for the Underwriters at the expense of the Sellers Underwriter Counsel in connection with the registration or qualification of the Offered 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 Grandview 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 Grandview, 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 Offered 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 Grandview, 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 Offered Shares to facilitate the sale or resale of any of the Offered 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 Grandview 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 Grandview.
(r) Upon the Closing, the Company will grant Grandview 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 completion of the offering. If Grandview accepts such right of first refusal, Grandview 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 Grandview 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 Grandview 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 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 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 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 otherwise), (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness of this Agreementearnings, when the Rule 462(b) Registration Statement has become effective and (v) business or operations, 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 upon your request, 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 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 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) If 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 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 securityholders 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 two years after hereafter, the date of this Agreement, to Company will furnish to you upon your written request copies (i) if requested, 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 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 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 Nasdaq National Market and to maintain the listing part of the Shares on Company to comply, in any material respect, with the Nasdaq National Market for a period terms of, or to fulfill, in any material respect, any of three years after the date of 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 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, but the Company shall not in any event be liable to the Closing Date or Managers for damage on account of loss of anticipated profits from the sale by any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of them of the Shares.
(k) If The Company will use the net proceeds received by it from the sale of the Shares to be sold by it hereunder in substantially the manner described in the Registration Statement at and the Prospectuses under the caption "Use of Proceeds".
(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 90 days after the date of the Prospectuses, without the prior written consent of Xxxxx Xxxxxx Inc. the Company will not (and, except as may be disclosed in the Prospectuses, will not announce or disclose any intention to) 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) sales to the Managers pursuant to this Agreement and the U.S. Underwriters pursuant to the U.S. Underwriting Agreement and (ii) options or Common Stock issued pursuant to stock options or grants under the Company's Long-term Incentive Plan of 1997 and the Company's Incentive Plan of 1987.
(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.
(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 commercially reasonable best efforts to have the Underwritten Shares listed, subject to notice of issuance, on the Nasdaq National Market 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 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, file any amendment or supplement to the Registration Statement (including any filing under Rule 462(b) under the Act) 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 use its best efforts to cause the Rule 462(b) Registration Statement and any post-effective amendment to the Registration Statement to become effective, and will notify the Representatives promptly, and will confirm such advice in writing, (i1) when any Rule 462(b) Registration Statement and any post-effective amendment to the Registration Statement become effective, (2) of the receipt of any comments from or 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 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, (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 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 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 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, including any amendment or supplement thereto, as the date Representatives may reasonably request. The Company consents to the use of this Agreement the Prospectus, including 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, 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 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, subject to the provisions of Section 5(a) hereof, 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 ProspectusUnderwriters, 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 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.
(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 Prospectus under "Use of Proceeds."
(l) The Company will use its best efforts to list for quotation have the Shares on the Nasdaq National Market and 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 AgreementAmerican Stock Exchange.
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 4 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, backlog of contracts, prospects, leases, 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 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 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 5 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, a reasonable number of copies thereof as such Underwriter or dealer may reasonably request in writinghereof.
(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 any filings and notifications regarding the registration or qualification of the Shares for offer offering and sale of Shares 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.
(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 (i) as soon as available, a copy of all reports or other communications furnished to each report 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 stockholders 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 6 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) 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 and performed sold by it hereunder substantially in accordance with the description set forth in the Prospectus under this Agreement by the caption "Use of Proceeds."
(k) If Rule 430A under the Act is employed, the Company prior will timely file a Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) Except as provided in this Agreement, 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 Closing Date 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 options to purchase shares of Common Stock pursuant to the Company's 1997 Stock Option Plan, and options to purchase that number of shares of Common Stock set forth in the Registration Statement may be granted to non-employee directors upon their appointment to the Board of Directors of the Company.
(m) The Company will not, directly or indirectly, take any action that would constitute, or any Option Closing Dateaction designed or that might reasonably be expected to cause or result in or constitute, as under the case may beAct, and the Exchange Act or otherwise, stabilization or manipulation of the 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 25-day period after the first date that any of the 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 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 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 press release or other public statement responding to or commenting on such publication or event.
(o) The Company will list the Shares which it agrees to sell under this Agreement, subject to notice of issuance, on the Nasdaq National Market on or before the date the Registration Statement at the time becomes effective. 7 (p) The Company will file a revocation of its election to be taxed under subchapter S of the effectiveness of this Agreement does not cover all of Internal Revenue Code and such election shall have become effective prior to 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 AgreementClosing Date.
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 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 Underwriters as follows:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, initiation (ior threatened initiation) 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 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, 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 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, one 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 this Agreement the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) the Shares are offered by the several Underwriters and from time by all dealers to time thereafter whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as in the reasonable opinion of counsel for the Underwriters a prospectus the 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 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 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 reasonable 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, 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; 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. 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 as soon as reasonably practicable an 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 (but in no event commencing later than 90 days after such effective date), 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 If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (other than pursuant to Section 13(i), (ii) or (iii) or as a result of a failure by the period Representatives or any Underwriter to fulfill their or its obligations hereunder) or if this Agreement shall be terminated by the Underwriters because of three years after any failure or refusal on the date part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to furnish 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) The Company will apply the net proceeds from the sale of the Shares to you upon your written request copies be sold by it hereunder substantially in accordance with the description set forth in the Prospectus under the caption "Use of all reports Proceeds."
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or other communications furnished term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the record holders Act.
(l) The Company will not offer, sell, contract to sell or otherwise dispose of any Common Stock or furnished rights to purchase Common Stock, or any securities convertible into or exercisable or exchangeable for Common Stock except to the Underwriters pursuant to this Agreement, for a period of 120 days after commencement of the public offering of the Shares by the Underwriters without the prior written consent of the Representatives; provided, however, that the Company may (i) issue Common Stock upon the exercise of warrants or stock options outstanding at the time of effectiveness of the Registration Statement and (ii) may grant stock options pursuant to the Company's Third Amended and Restated Stock Option Plan and the 1995 Nonemployee Directors Stock Option Plan.
(m) The Company will not, directly or indirectly, take any action which would constitute, or any action designed or which might reasonably be expected to cause or result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(n) and substance of, and, if appropriate, disseminate, a press release or other public statement responding to or filed with commenting on such rumor, publication, or event.
(o) The Company will maintain a transfer agent and, if necessary under the Commission jurisdiction of its incorporation or the rules of the Nasdaq Stock Market's National Market (the "Nasdaq National Market") or any national securities exchange on which any class of securities of the Company Common Stock is listed listed, a registrar (which, if permitted by applicable laws and such other publicly available information concerning rules, may be the Company and same entity as the transfer agent) for its subsidiaries as you may reasonably requestCommon Stock.
(ip) To use its best efforts The Company hereby agrees that this Agreement shall be deemed, for all purposes, to list for quotation have been made and entered into in Pinellas County, Florida. The Company agrees that any dispute hereunder shall be litigated solely in the Shares on the Nasdaq National Market and to maintain the listing Circuit Court of the Shares on State of Florida in Pinellas County, Florida or in the Nasdaq National Market United States District Court for a period the Middle District of three years after the date of this Agreement.
(j) To use its reasonable best efforts Florida, Tampa Division, and further agrees to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior submit itself to the Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery personal jurisdiction of the Sharessuch courts.
(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, 000 X.X. Xxxxx, #1120, Portland, OR 97204.
(i) To use The Company 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 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 ------------------------- 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 Xxxxx Xxxxxx 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 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 Xxxxx Xxxxxx 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 youthe Representatives:
(a) To advise you the Representatives promptly and, if requested by youthe Representatives, 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(d6(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 Representatives 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 the Representatives and each Underwriter designated by you the Representatives such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as you the Representatives may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to youthe Representatives, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under 424(b),under the Act; during the period specified in Section 5(d6(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 Representatives shall not previously have been advised or to which you the Representatives 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 the Representatives' 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 youthe Underwriters, 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(d6(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 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 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 Underwriters 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 1998 that shall satisfy the provisions of Section 11(a) of the Act, and to advise you the Representatives 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 the Representatives 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 the Representatives 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 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 pay or necessary cause 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 paid 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.expenses incident to
Appears in 1 contract
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 Prospectus 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, 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 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 Prospectuses or, prior to the end of the period of time referred to in the first sentence in paragraph (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 reasonably requested, copies of each form of the first business day after 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 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 U.S Underwriter or a dealer, to furnish in New York City the Company will 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 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 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 the U.S. 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 furnish to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light U.S. Underwriters 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 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 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(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 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.
(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 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 U.S. Underwriters because of any failure or refusal on the Nasdaq National Market and to maintain the listing 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 reasonable out-of-pocket expenses (including fees and expenses of counsel for the U.S. Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Underwritten Shares on substantially in accordance with the Nasdaq National Market 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) Except as provided in this Agreement, the Company will not sell, contract to sell or otherwise dispose of any TDS Telecom Group Common Stock or any securities convertible into or exercisable or exchangeable for TDS Telecom Group Common Stock, or grant any options or warrants to purchase TDS Telecom Group Common Stock, except as permitted as described in the Prospectuses under the heading "Underwriting," for a period of three years 180 days after the date of this Agreementthe U.S. Prospectus, without the prior written consent of the Representatives.
(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 reasonable best efforts to do current executive officers and perform all things required or necessary to be done directors and performed under by the trustee of the TDS Voting Trust.
(o) Except as stated in this Agreement by 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 any class of 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 AgreementAmerican Stock Exchange on or before the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Telephone & Data Systems Inc)
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 5(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 5(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 5(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(d5(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 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 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, and (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 Capital Market at the time of the Closing and to maintain the listing of the Shares on the Nasdaq National Market for a period of three years after the date of this Agreementsuch listing.
(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. For purposes of this Section 4, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The Company agrees with youthe Underwriters as follows:
(a) To advise you promptly andThe Company will comply with the requirements of Rule 415 and Rule 430B and will notify the Underwriters immediately, if requested by you, to and confirm such advice the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes or the Conversion Shares 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 the filing of a new registration statement or supplements any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iiiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of the Preliminary Prospectus, or of the suspension of the qualification of the Notes or the Conversion Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purposes, (iiipurposes or of any examination pursuant to Section 8(e) when any amendment to of the 1933 Act concerning the Registration Statement becomes effective, and (ivv) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), 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 reasonable efforts to prevent the issuance of any stop order and, if any stop order is required issued, to file a Rule 462(bobtain the withdrawal thereof as soon as possible.
(b) Registration Statement after The Company will advise the effectiveness Underwriters promptly and, if requested by them, will confirm such advice in writing, within the period of this Agreementtime referred to in paragraph (g) below, when of any change in the Rule 462(b) Registration Statement has become effective and Company’s condition (v) financial or other), business, prospects, properties, net worth or results of operations, 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 Statement, the Preliminary Prospectus, the Prospectus (as then amended or supplemented), the Disclosure Package (as defined below) or any Issuer Free Writing Prospectus (as defined below) untrue or which requires the making of any additions to or changes in the Registration Statement Statement, the Preliminary Prospectus, the Prospectus (as then amended or supplemented), the Disclosure Package or any Issuer Free Writing Prospectus in order to make the statements therein not misleading. If at any time , or of the Commission shall issue any stop order suspending the effectiveness of necessity to amend or supplement the Registration Statement, the Company will use its reasonable best efforts Preliminary Prospectus, the Prospectus (as then amended or supplemented), the Disclosure Package or any Issuer Free Writing Prospectus to obtain the withdrawal or lifting of such order at the earliest possible timecomply with any law.
(bc) To furnish The Company has furnished or will deliver to you five photocopies of signed the Underwriters and counsel for the Underwriters, without charge, 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 thereto. The copies of the Registration Statement as so filed and of each amendment thereto furnished to it, without exhibits, as you may reasonably request.
(c) To prepare 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 XXXXX, not to file any further amendment except 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 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.Regulation S-T.
(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 The Company has delivered in connection with sales by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. 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 XXXXX, except to the extent permitted by Regulation S-T. The Preliminary Prospectus and Prospectus shall be in form and substance reasonably satisfactory to the Underwriters. The Company consents to the use of the Preliminary Prospectus, 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(dthereto), any event shall occur or condition shall exist and the Pricing Supplement (as a result of which, in defined below) including the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements documents incorporated by reference 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 accordance 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 the jurisdictions as you may request, in which the Notes are offered by the Underwriters and by all dealers 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 whom Notes may be necessary in order to effect such registration or qualification; providedsold, 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 with the offering or and sale of the Shares, in any jurisdiction in which it is not now so subjectNotes.
(ge) To mail The Company will prepare a final pricing term sheet, in the form attached hereto as Exhibit B (the “Pricing Supplement”), in form and make generally available substance satisfactory to its stockholders the Underwriters, will file such Pricing Supplement as an issuer free writing prospectus pursuant to Rule 433 prior to the close of business two business days after the date hereof, and will furnish as soon as practicable an earnings statement covering but no later than prior to the twelve-month period ending December 31Applicable Time (as defined below) to each Underwriter, 2000 that shall satisfy the provisions of Section 11(a) without charge, as many copies of the ActPricing Supplement as such Underwriter may reasonably request. The “Applicable Time” means 8:30 am (Eastern time) on May 3, 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 2007 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 time as agreed by the Company and its subsidiaries as you may reasonably requestthe Lead Managers.
(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 (Sinclair Broadcast Group Inc)
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 XXXXX, 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 XXXXX, 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 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 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 Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & 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 Xxxxxxx & 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 Xxxxxxx & 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 Xxxxxxx & 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 Xxxxxxx & 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 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 Xxxxx Xxxxxx 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- xxxx 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 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 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 the Registration Statement becomes effectivethat purpose, (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 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 the 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 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 the Pricing Prospectus or the Prospectus that has not been superseded or modified by such Issuer Free Writing 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 Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & 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, a foreign corporation in any jurisdiction in which where it is not now so subject.
(g) To mail and [Reserved.]
(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 certificates representing the Shares, if applicable, (iii) furnishing (including costs of shipping and mailing) 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 in connection with the offering and sale of the Shares by the Underwriters or by dealers to list for quotation whom Shares may be sold, (iv) the notification of the listing of additional shares with respect to the Shares on the Nasdaq National Market and NGM, (v) any filings required to maintain be made in connection with clearance of the listing offering of the Shares on with FINRA (including the Nasdaq National Market reasonable and documented 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 this Agreementsuch jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda (including the reasonable and documented 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 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 personnel of any of the Underwriters); provided, however, that the amount payable by the Company with respect to fees and disbursements of counsel for the Underwriters incurred pursuant to clauses (v) and (vi) shall not exceed $20,000 in the aggregate. Except as expressly set forth herein, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, in connection with the offering and sale 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 would 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 Xxxxxxx & 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 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, that the Company may (A) effect the transactions contemplated hereby and (B) (I) issue Common Stock or options to purchase shares of Common Stock in connection with an acquisition, merger or other business combination, not to exceed in the aggregate the number of shares of Common Stock equal to 10% of the number of shares of Common Stock outstanding immediately following the closing of the offering contemplated by this Agreement and (II) issue shares of Common Stock or options to purchase shares of Common Stock, or issue shares of Common Stock upon exercise of options, pursuant to any equity plan or arrangement described in the Registration Statement, the Pricing Prospectus or the Prospectus, but only if, in the case of clauses (I) and (II), the holders of such shares of Common Stock or options agree in writing with the Underwriters not to sell, offer, dispose of or otherwise transfer any such shares of Common Stock or options during such period without the prior written consent of Xxxxxxx & Company, LLC (which consent may be withheld in its sole discretion); provided, further, 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 5(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 Xxxxxxx & 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 Xxxxxxx & Company, LLC, grant options to purchase shares of Common Stock at a price less than the public offering price of the Shares (except pursuant to employee stock plans existing as of the date of this Agreement). 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 Xxxxxxx & Company, LLC.
(n) The Company will cause each of its named executive officers, 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 Xxxxxxx & 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 you:
will (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 commercial efforts to obtain consummate the withdrawal Restructuring Transactions on or lifting of such order at the earliest possible time.
(b) To furnish prior to you five photocopies of signed copies of the Registration Statement as first filed with the Commission and of each amendment to itMarch 31, including all exhibits2010, 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 materially inconsistent with, or that would subject it materially delay consummation of the Restructuring Transactions; (b) neither assert nor support any assertion by any third party that, prior to general consent issuing any termination notice pursuant to service of process or taxation other than as Section 3, CIT Capital shall be required to matters obtain relief from the automatic stay from the Bankruptcy Court (and transactions relating hereby waives, to the Prospectusgreatest extent possible, the Registration Statement, any preliminary prospectus or the offering or sale applicability of the Sharesautomatic stay to the giving of such notice); (c) file all appropriate applications, motions or pleadings with the Bankruptcy Court, in any jurisdiction a timely manner, that are necessary to satisfy all deadlines concerning the Bankruptcy Court orders or findings set forth in which it is Section 3; (d) submit for and obtain at the earliest practicable date, Bankruptcy Court approval of the Disclosure Statement in form and substance reasonably satisfactory to CIT Capital no later than January 31, 2010; (e) except as the board of directors of the Company may determine in its good faith judgment, after receiving the advice of outside counsel to be required in the exercise of their fiduciary duties under applicable law, not now so subject.
withdraw the Plan without the prior consent of CIT Capital; (f) seek to confirm the Plan as expeditiously as commercially practicable under the Bankruptcy Code and the Bankruptcy Rules; (g) To mail implement all steps necessary and make generally available desirable to its stockholders obtain from the Bankruptcy Court an order confirming the Plan (the “Confirmation Order”) no later March 16, 2010; seek to satisfy as soon promptly as practicable an earnings statement covering the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) possible all conditions to confirmation and consummation of the Act, and to advise you Plan as set forth in writing when such statement has been so made available.
the Plan; (h) During consummate the period confirmed Plan at the earliest practicable date; (i) except as the board 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 directors of the Company is listed and such other publicly available information concerning may determine in its good faith judgment, after receiving the advice of outside counsel, to be required in the exercise of their fiduciary duties under applicable law, not to pursue, propose or support, or encourage the pursuit, proposal or support of, any plan of reorganization for the Company that is inconsistent with the Plan; 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 not seek to do and perform all things required implement any transaction or necessary to be done and performed under this Agreement by series of transactions that would effect a restructuring or reorganization on terms other than 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 SharesRestructuring Transaction.
(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: Plan Support and Lock Up Agreement (Cross Canyon Energy 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 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 agrees with youthe Representatives and the several Underwriters that:
(a) To advise you promptly andPrior to the termination of the offering of the Shares, if requested by you, to confirm such advice in writing, (i) of the Company will not file any request by the Commission for amendments amendment or supplement to the Registration Statement or amendments the Basic Prospectus (including the Final Prospectus or supplements any Preliminary Final Prospectus) unless the Company has furnished a copy to the Representatives for their review prior to filing and will not file any such proposed amendment or supplement to which the Representatives reasonably object unless filing is immediately required by law without right of appeal. Subject to the foregoing sentence, the Company will prepare the Final Prospectus setting forth the number of Shares covered thereby, the terms not otherwise specified in the Basic 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 in connection with the offering, the price at which the Shares are to be purchased by the Underwriters from the Selling Stockholders, in a form approved by the Representatives and shall file such Final Prospectus with the Commission not later than the Commission’s close of business on the second business day following the Execution Time. The Company will promptly file all reports required to be filed by it with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Act) in connection with the offering or sale of the Shares, and during such same period will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective (other than filings of the Company’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act) or any supplement to the Basic Prospectus or for additional informationany amended Final Prospectus has been filed with the Commission, (ii) of the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness use of any prospectus relating to the Registration Statement or Shares, of the suspension of the qualification of the such Shares for offering or sale in any jurisdiction, or of the initiation or threatening, to the knowledge of the Company, of any proceeding for any such purposespurpose, (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 or 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 request by the Commission shall issue any stop order suspending for the effectiveness amending or supplementing of the Registration Statement, the Final Prospectus or for additional information relating to the Shares; and the Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or any such order preventing or suspending the use of any prospectus relating to the Shares or the suspension of any such qualification and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Shares or suspending any such qualification, to use its commercially reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.as soon as possible;
(b) To furnish to you five photocopies Notwithstanding the provisions of signed copies of the Registration Statement as first filed with the Commission and of each amendment to itparagraph (a) above, including all exhibitsif, 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 at any further amendment time when a prospectus 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 under the Act (including in connection with sales by an Underwriter or a dealer, circumstances where such requirement may be satisfied pursuant 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(dRule 172), any event shall occur or condition shall exist occurs as a result of whichwhich the Final Prospectus, in the opinion as then amended or supplemented, would include any untrue statement of counsel for the Underwriters, it becomes a material fact or omit to state any 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 if, in the opinion of counsel for the Underwriters, if it is shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with applicable lawthe Act or the Exchange Act, forthwith to or the respective rules thereunder, the Company will promptly (i) notify the Representatives and the Selling Stockholders of such event, (ii) prepare and file with the Commission an appropriate amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any supplemented Final Prospectus to the Prospectus so that Representatives in such quantities as they may reasonably request;
(c) As soon as practicable, the Company will make generally available to its security holders an earnings statement or statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so deliveredCompany and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(d) The Company will furnish to the Representatives and counsel for the Underwriters, be misleadingwithout charge, or so that copies of the Prospectus will comply with applicable law, Registration Statement (including exhibits thereto) and to furnish the Representatives for delivery to each other Underwriter and to any dealer a copy of the Registration Statement (without exhibits thereto) and, so long as many copies thereof as such delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Final Prospectus, Issuer Free Writing Prospectus and Final Prospectus and any supplement thereto as the Representatives may reasonably request in writing.request. The Company will pay the expenses of printing or other production of all documents relating to the offering;
(fe) 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 jurisdictions in the United States of America as you the Representatives may request, to continue designate upon consultation with the Company and will maintain such registration or qualification qualifications in effect so long as required for the distribution of the Shares and to file such consents to service will pay any fee of process or other documents as may be necessary Financial Industry Regulatory Authority, Inc. (“FINRA”), in order to effect such registration or qualificationconnection with its review of the offering; 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.;
(gf) To mail and make generally available to its stockholders as soon as practicable an earnings statement covering The Company agrees that, unless it obtains the twelve-month period ending December 31, 2000 that shall satisfy the provisions of Section 11(a) prior written consent of the ActRepresentatives, 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 Agreementeach Underwriter, 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 severally and not jointly, agrees with the Commission Company that, unless it has obtained 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 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 of Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under 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 Shares not so covered Company under Rule 433 under the Act; provided that the prior written consent of the parties hereto shall be deemed to have been given in compliance respect of the Free Writing Prospectuses included in Schedule I hereto. 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 Rule 462(bthe requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping;
(g) by 10:00 P.M., New York City time, on During a period of 30 days from the date of this Agreement, the Company will not, without the prior written consent of the Representatives, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement (other than a registration statement on Form S-8 or a registration statement on Form S-3ASR) under the Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder; (B) the filing of any registration statement or prospectus, or any amendment or supplement thereto, for the registration for resale of any Common Stock held by any party to the Registration Rights Agreement, dated May 4, 2021, by and among, among others, the Company and the Selling Stockholders (the “Registration Rights Agreement”) on the date hereof, or any transferee or distributee thereof that has the right to such registration pursuant to the terms of the Registration Rights Agreement, or held by the escrow agent on the date hereof under that Membership Interest Purchase Agreement by and among Double Eagle III Midco 2 LLC, the Company, and Pioneer Natural Resources USA, Inc., dated April 1, 2021; (C) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Disclosure Package and the Final Prospectus; (D) any shares of Common Stock, restricted stock, restricted stock units, performance units or other equity-based awards issuable or issued, or options to purchase Common Stock to be granted or granted, pursuant to an existing employee benefit plan of the Company referred to in the Disclosure Package and the Final Prospectus; or (E) offers or issuances of Common Stock directly to a seller of a business or assets as part of the purchase price or private placements in connection with acquisitions thereof by the Company; provided that any such recipient of such shares of Common Stock will agree to be bound by these restrictions for the remainder of such 30-day period. In addition, the Company is authorized beginning on the 5th Business Day following the date of this Agreement to waive the restrictions in the Lock-Up Agreements for an aggregate amount of up to 350,000 shares of Common Stock for all Lock-Up Agreements combined;
(h) The Company will use its reasonable best efforts to maintain the listing of the Common Stock, including the Shares, on the New York Stock Exchange (“NYSE”);
(i) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock;
(j) In connection with each offering of Shares, the Company will take such steps as it deems necessary to ascertain promptly whether each Preliminary Final Prospectus that supplements the Basic Prospectus and the Final Prospectus prepared in connection with such offering and transmitted for filing, in each case, was received for filing by the Commission, and, in the event that any such prospectuses were not received for filing, it will promptly file any such prospectus not then received for filing;
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), any Issuer Free Writing Prospectus, each Preliminary Final Prospectus and Final Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Final Prospectus, each Issuer Free Writing Prospectus and Final Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares by the Selling Stockholders; (iii) the registration, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale or delivery of the Shares to the Underwriters; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the transportation and other expenses of the Company’s officers and employees in connection with presentations to prospective purchasers of the Shares; (vi) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company; (vii) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the NYSE and any registration thereof under the Exchange Act, (viii) any fees and expenses of any transfer agent or registrar of the Shares and any agent of the transfer agent or registrar and the fees and disbursements of counsel for the transfer agent or registrar in connection with the Shares; (ix) any costs, expenses and filing fees incurred in connection with the qualification of the Shares for sale under the laws of such jurisdictions as the Representatives designate (including the reasonable fees and disbursements of counsel relating to such qualification) and the preparation and printing of memoranda relating thereto, costs and expenses related to the review by FINRA of the offering (including filing fees and the fees and expenses of counsel and any special counsel for the Underwriters relating to such review); and (x) all other costs and expenses of the Company and its representatives incident to the performance by the Company of its obligations hereunder; provided however, that the provisions of this Section 6(k) shall not supersede or otherwise affect any agreement that the Company and any Selling Stockholder may otherwise have for the allocation of such expenses among themselves; and
(l) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Pioneer Natural Resources Co)
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 covenants and agrees with youthe Placement Agent as follows:
(a) To advise you promptly andThe Company will not, if requested during such period as the Prospectus would be required by youlaw to be delivered in connection with sales of the Shares by an underwriter or dealer in connection with the offering contemplated by this Agreement (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 Placement Agent within a reasonable period of time prior to the filing thereof and the Placement Agent shall not have objected thereto in good faith.
(b) During the Prospectus Delivery Period, the Company will notify the Placement Agent 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 any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, (iiiii) of the issuance by any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction 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 (known by the Company) thereof, (iii) when any amendment to the Registration Statement becomes effective, and (iv) if of receipt by the Company (which receipt is required known to file a Rule 462(bthe Company) Registration Statement after or any representative or attorney of the effectiveness Company of this Agreementany other communication from the securities or other governmental authority (including, when without limitation, the Rule 462(b) Registration Statement has become effective and (vCommission) of the happening any jurisdiction relating to any 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 Statement, any Preliminary Prospectus untrue or which requires any additions to or changes in the Registration Statement or the Prospectus in order to make connection with the statements therein not misleadingoffering contemplated hereby. If at any time any securities or other governmental authority (including, without limitation, the Commission Commission) of any jurisdiction 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 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 requestmoment.
(c) To prepare If, at any time when a Prospectus relating to the Prospectus, the form and substance of which shall Shares is required to be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) delivered 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 occurs as a result of whichwhich the Prospectus, in the opinion as then amended or supplemented, would include any untrue statement of counsel for the Underwriters, it becomes 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, in as then amended, would include any untrue statement of a material fact or omit to state a material fact necessary to make the opinion of counsel statements therein not misleading, or if for the Underwriters, any other reason it is necessary 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 4(a) 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 that corrects such statement or omission or effects such compliance and will deliver to the Placement Agent without charge, such number of copies thereof as the Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Placement Agent.
(d) The Company will furnish to the Placement Agent and its counsel, upon request, without charge, (i) one signed copy of the registration statement described in Section 3(a) hereof and all exhibits thereto (other than exhibits incorporated by reference from XXXXX) and (ii) so that long as a Prospectus relating to the statements in Shares is required to be delivered under the ProspectusAct, as so amended many copies of each Preliminary Prospectus or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus or any amendment or supplement the Placement Agent may reasonably request.
(e) 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.
(f) Prior to any public offering the sale of the SharesShares 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 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 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 The Company will make generally available to holders of its stockholders securities, as soon as practicable an may be practicable, 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) for a period of 12 months ended commencing after the twelve-month period ending December 31Effective Date, 2000 that shall satisfy 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).
(h) During The Company will not at any time, directly or indirectly, take any action prohibited by Regulation M of 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 Exchange Act in connection with the Commission or any national securities exchange on which any class of securities distribution of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestShares contemplated hereby.
(i) To use its best efforts to list for quotation The Company will apply the Shares on net proceeds from the Nasdaq National Market offering and to maintain the listing sale of the Shares on in the Nasdaq National Market for a period manner set forth in the Prospectus under the caption “Use of three years after the date of this AgreementProceeds.
(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
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 a post-effective amendment thereto to be declared effective before the offering of the Securities may commence, use its best efforts to cause 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) 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 Xxxxxx Xxxxxxx & 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 each of the Basic Prospectus and the Prospectus Supplement 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 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 youthe Underwriters as follows:
(a) To advise The Company will cause the Prospectus Supplement to be filed as required by Section 3(a) hereof (but only if you have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify you 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 Shares by any Underwriters or dealer, 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 notify the Underwriters promptly, and will confirm such advice in writing, (i1) when any post-effective amendment to the Registration Statement becomes effective, (2) 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 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, (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(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 (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, 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 Underwriters, upon request and without charge, two 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.each Underwriter, New York City timewithout charge, on as many copies of the first business day after Prospectus containing the date Prospectus Supplement or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of this Agreement the Prospectus or any amendment or supplement thereto by the 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, 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 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 thereto, and will deliver to each Underwriter, without charge, such number of copies of such supplement or supplement amendment 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. The Company shall 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 Underwriters after reasonable notice thereof.
(f) Prior to any public offering of the Shares, to Shares the Company will cooperate with you the Underwriters 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 Underwriters may requestrequest including, to continue such registration or qualification in effect so long as required for distribution without limitation, jurisdictions outside 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 qualificationUnited States; 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, upon request for such item by an Underwriter, furnish to such Underwriter 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, upon request for such item by such Underwriter, furnish to such 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 fifteenth full calendar month following the end of the Company's current fiscal quarter, an earnings statement covering (which need not be audited but shall be in reasonable detail) for a period of 12 months beginning after the twelve-month period ending December 31date upon which the Prospectus Supplement is filed pursuant to Rule 424 under the Act, 2000 that shall satisfy and satisfying 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 Underwriters, all fees, costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to fees, costs and expenses of or relating to (1) the preparation, printing and filing of the Registration Statement and exhibits to it, the Prospectus and any amendment or supplement to the Registration Statement or the Prospectus, (2) the preparation and delivery of certificates representing the Shares, (3) the printing of this Agreement and any Dealer Agreements, (4) 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 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, (5) the listing of the Shares on the Nasdaq National Market New York Stock Exchange, (6) filings required to be made by or on behalf of the Company or the Underwriters, including without limitation filings to be made by the Underwriters with the NASD, and the fees and disbursements and other charges (other than counsel for a period the Underwriters) in connection therewith and filings to be made by the Company with the Commission, and the fees, disbursements and other charges of three years after counsel for the date Company in connection therewith, (7) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f), including the fees, disbursements and other reasonable charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the Company and any surveyors, engineers, appraisers, photographers, accountants and other professionals engaged by or on behalf of the Company, (9) the transfer agent and registrar for the Shares, and (10) preparation of slides, overheads and other presentation material to be used in any "road show" or other presentation to potential investors and the hotel, travel and other expenses of the Company's employees in connection with any such "road show" or presentation; provided, however, that with respect to any fees, disbursements and other charges of counsel for the Underwriters in connection with the registration and qualification of the Shares under Blue Sky laws and the preparation of Blue Sky memorandum, the Company shall not be responsible for counsel fees, disbursements and other charges in excess of $15,000. The filing fee paid to the NASD shall not be considered to be "fees, disbursements or other charges" for the purposes of this AgreementSection 4(i) and shall be paid by the Company.
(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 by the Company prior pursuant to any of the provisions hereof (otherwise than pursuant to Section 8 hereof) or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse the Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of counsel to the Closing Date Underwriters) reasonably incurred by it in connection herewith.
(k) The Company will not at any time, directly or indirectly, take any Option Closing Dateaction intended, as or which might reasonably be expected, to cause or result in, or which will constitute, stabilization of the case may be, and price of the Firm Shares to satisfy all conditions precedent to facilitate the delivery sale or resale of any of the Shares.
(kl) 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 Prospectus under "Use of this Agreement does not cover all Proceeds."
(m) The Company will not, and will cause each of its executive officers to enter into agreements with the Underwriters in the form set forth in EXHIBIT E to the effect that they will not, for a period of 60 days after the commencement of the public offering of the Shares, without the prior written consent of PaineWebber Incorporated, sell, contract to file sell or otherwise dispose of any Common Shares or rights to acquire Common Shares (other than in the case of the Company pursuant to employee and director stock options or stock option or purchase plans, the Company's dividend reinvestment plan, the acquisitions of units of Gables Realty Limited Partnership presented for redemption, and in exchange for property acquired from third-parties and pursuant to the exercise by the Underwriters of the Option, or in the case of an individual, the pledge of Common Shares as collateral for any loan from an institutional lender, provided the loan-to-value ratio does not exceed 50%).
(n) The Company will not, with respect to the Shares, invoke the authority granted under Section 5.7 of the Amended and Restated Declaration of Trust (the "DECLARATION OF TRUST") of the Company to revoke the exception contained in Section 5.6.2 of the Declaration of Trust under which shares transferred to an Underwriter in a Rule 462(bpublic offering will not be deemed to be Excess Shares (as defined in the Declaration of Trust), notwithstanding the fact that the shares owned beneficially by the Underwriter may exceed the Ownership Limit (as defined in the Declaration of Trust).
(o) Registration Statement with The Company will continue to elect to qualify as a "real estate investment trust" under the Commission registering Code, and will use its best efforts to continue to meet 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 Agreementrequirements to qualify as a "real estate investment trust."
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 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.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 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) 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.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 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 Xxxxxx Xxxxxxx & 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 agrees with youthe Underwriters as follows:
(a) To The Company will cause the Basic Prospectus as supplemented by the Prospectus Supplement to be filed pursuant to the Rules and Regulations and will, prior to the later of the Closing Date or the end of the period of time referred to in Section 4(e), advise you the Underwriters promptly and, if requested by youthe Underwriters, to will confirm such advice in writingwriting (i) when any amendment to the Registration Statement hereafter becomes effective, (iii) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement, the Basic Prospectus or Prospectus or for additional informationinformation with respect thereto, (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 the Registration Statement becomes effective, that purpose 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 which 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 Statement, the Basic Prospectus or the Prospectus untrue in any material respect or which requires the making of any additions to or changes in the Registration Statement Statement, the Basic Prospectus 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 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 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 . 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 the Underwriters' request, any amendment amendments or supplements to the Registration Statement or amendment or supplement to the Prospectus which may the Underwriters deem to 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 effectiveadvisable.
(db) Prior The Company will furnish 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 without charge, the Prospectus in order to make the statements therein, in the light number of signed copies 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 Registration Statement as originally filed with the Commission an appropriate and of each amendment or supplement to the Prospectus so that the statements thereto and of copies of each Incorporated Document, including in the Prospectuseach case all exhibits thereto, as so amended or supplemented, which will not in the light allow each representative 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 Underwriters as many copies thereof well 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 to receive a complete set 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 requestdocuments, 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.and
Appears in 1 contract
Sources: Underwriting Agreement (Golden West Financial Corp /De/)
Agreements of the Company. The Company agrees with youthe 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 promptly thereafter. Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished to you a copy for your review prior to filing and will not file any such advice in writingproposed amendment or supplement to which you 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. The Company will promptly advise the Representatives (1) when the Registration Statement, if not effective at the Execution Time, shall have become effective, (i2) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (3) when, prior to termination of the offering of the Notes, any amendment to the Registration Statement shall have been filed or become effective, (4) of any request by the Commission or its staff for amendments to any amendment of the Registration Statement Statement, or amendments any Rule 462(b) Registration Statement, or supplements for any supplement to the Prospectus or for any additional information, (ii5) 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 (6) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, jurisdiction or the initiation institution or threatening of any proceeding for such purposespurpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(iiib) If, at any time when any amendment to the Registration Statement becomes effective, (iv) if the Company a prospectus is required to file a Rule 462(b) Registration Statement after be delivered under the effectiveness of this AgreementAct, 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, 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 Act or the Exchange Act or the respective rules thereunder, forthwith to the Company promptly will (1) notify the Representatives of such event, (2) 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 effect such compliance and (3) 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 As soon as practicable, the Company will make generally available to any public offering its security holders and to the Representatives an earnings statement or statements of the Shares, Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to cooperate with you the Representatives and counsel for the Underwriters at the expense Underwriters, without charge, a reasonable number of signed copies of the Sellers in connection with Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the registration Registration Statement (without exhibits thereto). The Company will furnish to the Underwriters not later than (A) 6:00 P.M., New York City time, on the date of determination of the public offering price of the Notes, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 6:00 P.M., New York City time, on the Business Day following the date on which the public offering price of the Notes was determined, if such determination occurred after 12:00 noon, New York City time, on such date, as many copies of each Preliminary Prospectus, the Prospectus and any supplement thereto as the Representatives may reasonably request. So long as delivery of a prospectus by any underwriter or any dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of the Notes and Conversion 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 continue will maintain such registration or qualification qualifications of the Notes in effect so long as required for the distribution of the Shares Notes and to file such consents to service will pay any fee of process or other documents as may be necessary the NASD in order to effect such registration or qualificationconnection with its review, if any, of the Registration Statement and the offering of the Notes; 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, in each case, 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 and sale of the Shares, Notes in any jurisdiction in which where it is not now so subject.
(gf) To mail The Company will not, without the prior written consent of J.P. Morgan and make generally available to its stockholders Salomon Smith Barney 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) Representatives of the ActUndxxxxxxxxx, and durinx xxx xxxxxx ox 00 xays following the Execution Time, (i) offer, pledge, sell, contract to advise you in writing when such statement has been so made available.
(h) During sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, or announce the period offering of three years after the date any shares 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 common stock of the Company is listed and such other publicly available information concerning or any securities convertible into, or exercisable or exchangeable for shares of any class of common stock of the Company and its subsidiaries as you may reasonably request.
(whether such shares or any such securities are now owned or hereafter acquired) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of shares of any class of the common stock of the Company, whether any such transaction described in clause (i) To use its best efforts or (ii) above is to list for quotation the Shares on the Nasdaq National Market and to maintain the listing be settled by delivery of shares of any class of common stock 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 Company or necessary to be done and performed under this Agreement by such other securities, in cash or otherwise; provided, however, that the Company prior may issue, sell, contract to the Closing Date sell or otherwise dispose of or grant options for, shares of any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery class of common stock of the Shares.
Company or securities convertible into, or exchangeable for, shares of any class of common stock of the Company: (k1) If pursuant to any benefit plan of the Registration Statement Company in effect at the time of Execution Time; and (2) pursuant to any warrants, stock options or other convertible securities outstanding at 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 AgreementExecution Time.
Appears in 1 contract
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 National Association of Securities Dealers, Inc., 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 filing fee of the National Association of Securities Dealers, Inc. 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 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 Until the business date set forth on Schedule I hereto, the Company will not, without the consent of the Representatives, offer, sell or contract to do and perform all things required sell, or necessary to be done and performed under this Agreement otherwise dispose of, directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company prior to (other than 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 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 he 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(b) by 10:00 P.M., New York City time, on the date of this Agreement433.
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, file any amendment or supplement to the Registration Statement (including any filing under Rule 462(b) under the Act) 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) of the receipt of any comments from or any request by the Commission for amendments or supplements 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 for offering or sale in any jurisdiction, 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 (v3) 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 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 misleading, and (4) 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 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, including any amendment or supplement thereto, as the date Underwriter may reasonably request. The Company consents to the use of this Agreement the Prospectus, including 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, 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 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, subject to the provisions of Section 5(a) hereof, 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 which is not approved by the Underwriter after reasonable notice thereof.
(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 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 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 (otherwise than 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 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 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 Prospectus under “Use of Proceeds.”
(l) The Company will use its best efforts to list for quotation have the Shares on the Nasdaq National Market and 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 AgreementAmerican Stock Exchange.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with youthe Underwriters that:
(a) To advise you If the Registration Statement has not been declared effective prior to the time of execution of this Agreement, the Company will use its best efforts to cause the Registration Statement to become effective as promptly andas possible, or, if requested by youthe procedure in Rule 430A of the Act is followed, to confirm such advice prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in writinga form approved by the Underwriters containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Act, and will not at any time, whether before or after the Effective Date, file any amendment or supplement to the Registration Statement, (i) which shall not have been previously submitted to, and approved by, the Underwriters or the Underwriters’ Counsel within a reasonable time prior to the filing thereof, (ii) to which the Underwriters or the Underwriters’ Counsel shall have reasonably objected as not being in compliance with the Act or the Rules and Regulations or (iii) which is not in compliance with the Act or the Rules and Regulations. If the Company elects to rely on Rule 462(b) under the Act, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Act prior to the time confirmations are sent or given, as specified by Rule 462(b)(2) under the Act, and shall pay the applicable fees in accordance with Rule 111 under the Act.
(b) The Company will notify the Underwriters, promptly after it shall have received notice of the effectiveness of the Registration Statement or any amendment or supplement thereto, of the receipt of any comments of the Commission with respect thereto, and of the time when the Registration Statement or any post-effective amendment thereto has become effective or any supplement to the Prospectus has been filed.
(c) The Company will advise the Underwriters promptly of any request by of the Commission for amendments an amendment or supplement to the Registration Statement or amendments or supplements to the Prospectus Prospectus, or for any additional information, (ii) or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of any judgment, order, injunction or decree preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation institution of any proceeding proceedings for any of such purposes, (iii) when any amendment to the Registration Statement becomes effectiveof which it has Knowledge, (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 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 and file with obtain as promptly as possible 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 effectivelifting thereof.
(d) Prior If at any time when a Prospectus relating to 10:00 A.M.the Shares is required, 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 Underwriters’ Counsel, to be delivered in connection with sales under the Act by an Underwriter or a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of the Underwriters (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(dDelivery Period”), any event shall occur or condition shall exist have occurred as a result of which, in the reasonable opinion of counsel for the Company or the Underwriters’ Counsel, it becomes the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to 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 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, forthwith to the Company will notify the Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be reasonably satisfactory to the Underwriters’ Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may reasonably request.
(e) Within the Prospectus so that Delivery Period, or pursuant to the statements undertakings of the Company in the ProspectusRegistration Statement, the Company, at its own expense, will comply in all material respects with all requirements imposed upon it by the Act, the Rules and Regulations, the 1934 Act and the rules and regulations of the Commission promulgated under the 1934 Act, each as so now or hereafter amended or supplemented, and by any order of the Commission so far as necessary to permit the continuance of sales of, or dealings in, the Shares.
(f) The Company will furnish to the Underwriters, without charge, a signed copy of the Registration Statement and of any amendment or supplement thereto which has been filed prior to the date of this Agreement, together with two (2) copies of each exhibit filed therewith, and three (3) conformed copies of such Registration Statement and as many amendments thereto (unsigned and exclusive of exhibits) as the Underwriters may reasonably request. The signed copies of the Registration Statement so furnished to the Underwriters will include signed copies of any and all consents and reports of the independent public auditors as to the financial statements included in the Registration Statement and Prospectus, and signed copies of any and all consents and certificates of any other person whose profession gives authority to statements made by them and who are named in the Registration Statement or Prospectus as having prepared, certified or reviewed any parts thereof.
(g) The Company will deliver to the Underwriters, without charge, (i) prior to the Effective Date, copies of each Preliminary Prospectus filed with the Commission bearing in red ink the statement required by Item 501 of Regulation S-K of the Rules and Regulations; (ii) on and from time to time after the Effective Date, copies of the Prospectus; and (iii) as soon as they are available, and from time to time thereafter, copies of each amended or supplemented Prospectus, and the number of copies to be delivered in each such case will be such as the Underwriters may reasonably request. The Company has consented and hereby consents to the use of each Preliminary Prospectus for the purposes permitted by the Act and the Rules and Regulations. The Company authorizes the Underwriters to use the Prospectus in connection with the sale of the Shares during the Prospectus Delivery Period. Notwithstanding the foregoing, the Underwriters shall not use any Preliminary Prospectus or the Prospectus if the Company has given the Underwriters written notice of the occurrence, or imminently potential occurrence, of any development that could cause such Preliminary Prospectus or Prospectus, as the case may be, to include an untrue statement of a material fact or to omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances when it is so deliveredcircumstances, be not 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.
(fh) Prior The Company will take such action 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 qualify 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 may the Underwriters shall reasonably request.
(i) During the period commencing on the date hereof and ending [90 days] from the First Closing Date (the “Lock-Up Period”), 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 (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be required settled by delivery of Common Stock or such other securities, in connection therewith cash or otherwise, without the prior written consent of Xxxxxxxx Curhan Ford & Co. (such consent not to register be unreasonably withheld) and the prior consent of a majority of the Company’s independent directors. The foregoing paragraph shall not apply to issuances of securities pursuant to the Company’s 1988 Stock Option Plan, as amended, 1994 Stock Option Plan, as amended, 1994 Employee Stock Purchase Plan, as amended and 1994 Directors’ Stock Option Plan, as amended. The Company agrees that if (a) during the last 18 days of the Lock-Up Period, the Company issues an earnings release or qualify as material news or 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 material event relating to the ProspectusCompany occurs; or (b) prior to the expiration of the Lock-Up Period, the Registration StatementCompany announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, any preliminary prospectus the restrictions set forth herein shall continue to apply until the expiration of the 19-day period beginning on the issuance of the earnings release or the offering or sale occurrence of the Sharesmaterial news or material event, as applicable, unless Xxxxxxxx Curhan Ford & Co. waives, in any jurisdiction in which it is not now so subjectwriting, such extension.
(gj) To mail and As soon as practicable, but in any event not later than forty five (45) days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement is deemed to occur pursuant to Rule 158(c), the Company will make generally available to its stockholders as soon as practicable an earnings statement covering security holders (within the twelve-month period ending December 31, 2000 that shall satisfy the provisions meaning of Section 11(a11 (a) of the Act) an earnings statement of the Company meeting the requirements of Rule 158(a) under the Act covering a period of at least twelve (12) months beginning after the Effective Date, and to advise you in writing when the Underwriters that such statement has been so made available.
(hk) The Company will apply the net proceeds (“Proceeds”) it realizes from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Prospectus.
(l) During the period course of three years after the date distribution of this Agreementthe Shares, the Company will not and the Company will cause its officers and directors not to take, directly or indirectly, any action designed to or which might, in the future, cause or result in stabilization or manipulation of the price of the Shares. During the Prospectus Delivery Period, the Company will not issue press releases or engage in any other publicity without the Underwriters’ prior written consent, which consent shall not be unreasonably withheld.
(m) The Company will use its best efforts, at its cost and expense, to furnish take all necessary and appropriate action to you upon your written request copies of list the Shares on the NASDAQ and maintain such listing for as long as the Shares are so qualified.
(n) On the Closing Dates, all reports transfer or other communications furnished taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares will have been fully paid by the Company and all laws imposing such taxes, if any, will have been fully complied with.
(o) Subsequent to the record holders dates as of Common Stock which information is given in the Registration Statement and Prospectus and prior to the Closing Dates, except as disclosed in or furnished to contemplated by the Registration Statement and Prospectus, (i) the Company will not have incurred any liabilities or filed with obligations, direct or contingent, or entered into any material transactions other than in the Commission ordinary course of business; (ii) there shall not have been any change in the capital stock, funded debt (other than regular repayments of principal and interest on existing indebtedness) or any national securities exchange on which any class of other securities of the Company is listed (except as contemplated in the Registration Statement), or any Material Adverse Effect; and such other publicly available information concerning (iii) the Company and shall not have paid or declared any dividend or other distribution on its subsidiaries as you may reasonably requestCommon Stock or its other securities or redeemed or repurchased any of its Common Stock or other securities.
(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
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 you, without charge, seven 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 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 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 any documents incorporated therein by reference (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 reasonably practicable an earnings statement covering the twelve-month period ending December March 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) During the period of 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 the Perenchio Selling Stockholders' 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 (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 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, custodian 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 Selling Stockholders will pay (directly or by reimbursement) all fees and expenses incident to the performance of their obligations under this Agreement which are not otherwise specifically provided for herein, including but not limited to (i) any fees and expenses of counsel for such Selling Stockholders, except for fees and expenses of O'Melveny & Xxxxx LLP, as counsel to the Perenchio Selling Stockholders, and (ii) all expenses and taxes incident to the sale and delivery of the Shares and Warrants to be sold by such Selling Stockholders to the Underwriters hereunder. The Selling Stockholders will also be responsible for the underwriting discounts and commissions with respect to the Shares and Warrants to be sold by them. 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. Except as provided in this Section 5(j) and Sections 8 and 10 hereof, the Underwriters shall pay all of their own expenses, including the fees and disbursements of their counsel.
(k) To use its best efforts to list for quotation maintain the Shares inclusion of the Common Stock (including the Shares) on the Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq National Market New York Stock Exchange for a period of three years after the effective date of this Agreementthe Registration Statement.
(jl) To consent to and recognize the purchase and exercise of all of the Firm Warrants and Additional Warrants by the Underwriters and, upon payment of the purchase price for the Firm Warrants and any Additional Warrants to the Xxxxxx Selling Stockholders, to deem any and all requirements for the transfer of such Warrants to be satisfied.
(m) Simultaneously with the purchase by the Underwriters from the Xxxxxx Selling Stockholders of, and payment for, the Firm Warrants and any Additional Warrants and the payment to the Company of the Warrant Exercise Price by the Underwriters, the Company will issue the Firm Warrant Shares and any Additional Warrant Shares, respectively, all as contemplated by this Agreement notwithstanding any contrary provision contained in the Warrants, the enforcement of which the Company hereby waives.
(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 Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesFirm Securities and the Additional Securities.
(ko) 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 (Univision Communications Inc)
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 and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestCompany.
(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 agrees with youyou as follows:
(a) To advise 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 you promptly andor a dealer, 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 you within a reasonable period of time prior to the filing thereof and you shall not have objected thereto in good faith.
(b) The Company will notify you 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 you 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 ityou, 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 itbe incorporated by reference into the Prospectus).
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company will deliver to the Underwriter, without exhibitscharge, as many copies of the Prospectus or any amendment or supplement thereto, as you may reasonably request.
(c) To prepare . The Company consents to the Prospectus, the form and substance use 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 or any amendment or supplement thereto by the Underwriter and by all dealers to whom 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 Securities may be necessary or advisable sold, both in connection with the distribution offering or sale of the Shares by you, Securities and to use its reasonable best efforts to cause for 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 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 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 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 Underwriter or dealer you may reasonably request in writingrequest. The Company shall not file any document under the Exchange Act before the termination of the offering of the Securities by you 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 SharesSecurities by the Underwriter, to the Company will cooperate with you the Underwriter and the Underwriter's 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 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 of the Price Determination Agreement, the Company will furnish to you 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 you 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 fifteenth 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, 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 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 you, all 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 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, any amendment or supplement to the Registration Statement or the Prospectus and the Indenture, (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, mailing and courier) such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (v) any filings required to be made by the Underwriter with the NASD, and the fees, disbursements and other charges of counsel for the Underwriter in connection therewith, (vi) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f), including the fees, disbursements and other charges of counsel to the Underwriter in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (vii) counsel to the Company, (viii) the transfer agent and registrar for the Securities, (ix) the rating of the Securities by one or more rating agencies, (x) the Trustee and any agent of the Trustee and the fees, disbursements and other charges of counsel for the Trustee in connection with the Indenture and the Securities and (xi) the Accountants. Except as otherwise provided in this Section 4, the Underwriter shall pay all of its own costs and expenses.
(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 by the Company prior pursuant to any of the provisions hereof or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse the Underwriter for all out- of-pocket expenses (including the fees, disbursements and other charges of counsel 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 SharesUnderwriter) reasonably incurred by it in connection herewith.
(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, Securities to file a Rule 462(bfacilitate the sale or resale of any of the Securities.
(l) Registration Statement with The Company will apply the Commission registering net proceeds from the Shares offering and sale of the Securities in the manner set forth in the Prospectus under "Use of Proceeds."
(m) The Company will not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on claim the date benefit of this Agreementany usury law against any holders of Securities.
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) Moodx'x Xxxestors 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. (a) The Company agrees with youthat, for the duration of the Support Period, the Company shall, and shall cause each of its subsidiaries included in the definition of Company, to:
(a) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) of any request by support and take all actions reasonably necessary to facilitate the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional informationRestructuring and Sale Transaction(s), as contemplated under this Agreement;
(ii) timely file any objection or opposition to any motion filed with the Bankruptcy Court seeking the entry of an order modifying or terminating the Company’s exclusive right to file and/or solicit acceptances of a plan of reorganization, directing the appointment of an examiner with expanded powers or a trustee, or converting the Chapter 11 Cases to cases under chapter 7 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, Bankruptcy Code;
(iii) when not file for relief that (1) is inconsistent with this Agreement in any amendment to material respect or (2) would reasonably be expected to, frustrate the Registration Statement becomes effective, (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness purposes of this Agreement, when including by preventing the Rule 462(bconsummation of the Restructuring;
(iv) Registration Statement has become effective negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring as contemplated herein;
(v) timely file a formal objection to any motion, application, or adversary proceeding challenging the validity, enforceability, perfection, or priority of, or seeking avoidance or subordination of, any portion of the happening Claims of the Supporting Creditors as contemplated here;
(vi) provide reasonably prompt written notice (in accordance with Section 22 hereof) to the Supporting Creditors, solely to the extent the Company has knowledge, of (A) any governmental or third party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened) that would prevent, hinder, or delay the consummation of the Restructuring in any material respect, (B) any failure of the Company to comply with any covenant, agreement or condition hereunder in any material respect, (C) any condition precedent contained in the Plan not to timely occur or become impossible to satisfy; (D) receipt of any event notice from any third party alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Restructuring;
(vii) provide to the Supporting Creditors and their respective professionals, (A) upon reasonable advance notice to the Company and during normal business hours, reasonable access to the period referred to in Section 5(d) below which makes any statement respective management and advisors of a material fact made the Company for the purposes of evaluating the Company’s finances and operations and participating in the Registration Statement planning process with respect to the Restructuring, and (B) timely and reasonable responses to all reasonable diligence requests;
(viii) not amend or the Prospectus untrue modify, or which requires any additions file a pleading seeking authority to amend 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 Statementmodify, the Company will Definitive Documents or any other document related to the Restructuring in a manner that is materially inconsistent with this Agreement;
(ix) use its commercially reasonable best efforts to obtain any and all required regulatory and/or third-party approvals for the withdrawal Restructuring and Sale Transaction(s);
(x) not take any action that is materially inconsistent with, or lifting is intended or is reasonably likely to materially interfere with the Restructuring and Sale Transaction(s);
(xi) provide draft copies of any material pleading at least two (2) business days prior to the date when the Company intends to file any such pleading or other document, and shall consult in good faith with Supporting Creditors’ Advisors regarding the form and substance of such drafts (provided that if delivery of such material pleading at least two (2) business days in advance is not reasonably practicable, such pleading shall be delivered as soon as reasonably practicable prior to filing);
(xii) provide draft copies of all material motions or applications, Definitive Documents and other documents (including, without limitation, all first day and second day motions and orders of the Bankruptcy Court approving any first day motions or second day motions (other than retention applications), the Plan, the Disclosure Statement, ballots and other solicitation materials in respect of the Plan, any proposed amended version of the Plan or the Disclosure Statement, a proposed disclosure statement order and a proposed confirmation order) the Company intends to file with the Bankruptcy Court to the Supporting Creditors’ Advisors at least two (2) business days prior to the earliest possible timedate when the Company intends to file any such pleading or other document (provided that if delivery of such motions, orders or materials (other than the Plan, the Disclosure Statement, a disclosure statement order, or a confirmation order) at least two (2) business days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing), and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing with the Bankruptcy Court;
(xiii) not, without the consent of the Required Supporting Creditors, (a) authorize, approve, or otherwise implement any change to the senior management team, including the hiring, termination, change in position or change in compensation of any member of the Company’s senior management team, (b) amend, modify or supplement any existing employment agreement, (c) make, declare, set aside or pay any severance cost or expenses;
(xiv) only consummate a Sale Transaction with a successful bidder with the consent of the Required Supporting Creditors;
(xv) approve, authorize or agree (orally or in writing) to take any of the actions se forth above; and
(xvi) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring, negotiate in good faith appropriate additional or alternative provisions to address any such impediment.
(b) To furnish If the Company makes or receives a written proposal or expression of interest regarding or with respect to you five photocopies any plan of signed copies reorganization or liquidation, proposal, offer, dissolution, winding up, liquidation, reorganization, merger, consolidation, business combination, joint venture, partnership, sale of assets or equity interests or restructuring (other than the Restructuring) involving the Company, or any of their assets, properties or businesses (an “Alternative Proposal”), the Debtors shall promptly notify the Supporting Creditors’ Advisors 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 receipt of any such amendment; andproposal or expression of interest relating to an Alternative Proposal, during with such periodnotice to include the material terms thereof, to prepare and file with including 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 identity of the Shares person or group of persons involved (unless prohibited by you, and to use its reasonable best efforts to cause any such amendment to the Registration Statement to become promptly effectivea separate 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.
(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 1 contract
Sources: Restructuring Support Agreement (Ion Geophysical Corp)
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 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) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Financed Student Loans and shall cause each Servicer to mark their respective computer records relating to the Financed Student Loans to show the absolute ownership by the Eligible Lender Trustee, as eligible lender of, and the interest of the Company in, the Financed Student Loans, 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.
(n) 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.
(o) 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.
(p) 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
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, the Company will deliver to each of the Underwriters, without charge, as many copies of the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto in accordance with the provisions of the 1933 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 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, 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, 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 Prospectus, as so amended or supplemented, will not in the light each of the circumstances when it is so deliveredUnderwriters, be misleadingwithout charge, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many such number of copies thereof as such Underwriter or dealer the Representatives may reasonably request in writingrequest.
(f) Prior to any public offering of the SharesShares 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 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 five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request a copy 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 shares of Common Stock, and will furnish to 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 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, an earnings statement covering (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the twelve-month period ending December 31Effective Date, 2000 that shall satisfy and satisfying the provisions of Section 11(a) of the Act, and to advise you in writing when such statement has been so made available.
1933 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 The Company will not at any time, directly or indirectly, take any action designed, or which 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) If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the Rules and Regulations, 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 497(h) of the Rules and Regulations copies of an amended Prospectus or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(k) Until the date 120 days after the date of the Prospectus, the Company will not, without the prior written consent of EVEREN Securities Inc., offer, sell, or issue or enter into any agreement to sell or issue, any shares or securities convertible into or exercisable or exchangeable for, or warrants, options or rights to purchase or acquire, shares of the Company other than pursuant to this Agreement, the Company's Dividend Reinvestment Plan or the 1996 Stock Option Plan or the Disinterested Director Option Plan, as contemplated in the Prospectus.
(l) The Company will use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain effect the listing of the Shares on the The Nasdaq National Market for a period of three years after the date of this AgreementSmallCap Market.
(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
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 Xxxxx Xxxxxx 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 Xxxxxxxx Casting Corporation 1993 Incentive Stock Plan and the Xxxxxxxx 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 Xxxxxxxx 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. The Company agrees with youthe Underwriter 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 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 offering price, 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 the Underwriter 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 the Underwriter promptly and, if requested by youthe Underwriter, 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 the Underwriter 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 the Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it as the Underwriter 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 the Underwriter shall not previously have been advised or to which the Underwriter or its counsel shall reasonably object; and to prepare and file with the Commission, promptly upon the Underwriter's 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 the Underwriter's counsel, may be necessary in connection with the distribution of the Shares by the Underwriter, and to use its best efforts to cause the same to become promptly effective.
(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 UnderwritersUnderwriter, 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 the Underwriter 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 the Underwriter, 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, (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 of the Shares by the Company 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 Proceeds."
(n) The Company will prepare and file or transmit for filing with the Commission, in accordance with Rule 424(b) of the SharesAct, copies of the Prospectus.
(o) The Company will use its best efforts to file continue to qualify as a Rule 462(b"real estate investment trust" ("REIT") Registration Statement with under Sections 856 through 860 of the Commission registering Internal Revenue Code of 1986, as amended (the Shares not so covered in compliance with Rule 462(b) by 10:00 P.M."Code"), New York City time, 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.
Appears in 1 contract
Sources: Underwriting Agreement (Trinet Corporate Realty Trust 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 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 covenants and agrees ------------------------- with youthe Underwriter that:
(a) To a. The Company will advise you the Underwriter promptly and, if requested by youthe Underwriter, to will confirm such advice in writing, (i) when any post- effective amendment to the Registration Statement is filed or 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 (g) 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 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.
(b) To furnish moment. If the Company elects not to you five photocopies of signed rely on Rule 434, the Company will provide the Underwriter with copies of the Registration Statement form of Prospectus in such numbers as first filed the Underwriter may reasonably request and file or transmit for filing 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 Prospectus in accordance with Rule 424(b) of the Registration Statement as so filed and Act, by the close of each amendment to it, without exhibits, as you may reasonably requestbusiness in San Francisco on the business day immediately succeeding the date hereof.
(c) To b. The Company will 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 Commission, in accordance with Rule 430A and 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. The Company will, prior to the Closing Date, not incur any material 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; provided, that advised reasonably object in writing.
e. On the Company shall have the right to make such further amendments as are required by law to be made and shall forthwith notify you 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 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 Registration Statement and the Prospectus (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 UnderwritersUnderwriter, 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 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 and deliver, without charge to the dealers (whose names and addresses will be furnished by the Underwriter to the Company) to whom shares have been sold by the Underwriter 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 Underwriter 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 the 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, 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 SharesCompany will, to cooperate with you and counsel for the Underwriters upon request, but at the expense of the Sellers Underwriter, promptly prepare and furnish the Underwriter with reasonable quantities of a Prospectus complying with Section 10(a)(3) of the Act.
f. The Company will cooperate with the Underwriter and counsel for the Underwriter in connection with the registration or qualification of the Shares 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 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 to register or (i) qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified qualified, (ii) 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.
g. For a period of five years after the date hereof:
i. the Company will furnish to the Underwriter (gA) To mail 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 periodic 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 Underwriter may reasonably request;
ii. if at any time during such five-year period the Company shall cease filing with the Commission the periodic reports and current reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (g)(i) above, the Company will forward to its shareholders generally and the Underwriter (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 Underwriter 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).
h. The Company will make generally available to its stockholders security holders an earnings statement of the Company, which need not be audited, covering a 12-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 availablethe rules and regulations promulgated thereunder (including Rule 158).
(h) During the i. The Company will not sell, contract to sell or otherwise dispose of any Common Stock or rights to purchase Common Stock for a period of three years 120 days after the date of this Agreement, to furnish to you upon your the Prospectus without the prior written request copies consent of all reports or the Underwriter (other communications furnished to than the record holders issuance of shares of Common Stock or furnished pursuant to or filed with the Commission or any national securities exchange on which any class of securities Company's stock option plan(s) and certain other employment benefit arrangements of the Company is listed and such other publicly available information concerning in an aggregate amount not to exceed 5 percent of the Shares). The Company and its subsidiaries as you may reasonably request.
(i) To will also use its best efforts to list for quotation obtain similar agreements from each of its executive officers and directors and all persons who own at least 5 percent of the Shares on Common Stock after the Nasdaq National Market and to maintain consummation of the listing Offering.
j. The Company will apply the net proceeds from the sale 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 sold by it under this Agreement by for the Company prior to purposes set forth in the Closing Date or any Option Closing Date, as Prospectus under the case may be, and to satisfy all conditions precedent to the delivery caption "Use of the SharesProceeds.
(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 (Guaranty Bancshares Inc /Tx/)
Agreements of the Company. The Company agrees with youthat:
(a) To advise you promptly andPrior to the Effective Date and at any time when a prospectus relating to the Notes is required to be delivered under the Act or the Rules and Regulations, if requested by you, to confirm such advice in writing, (i) of the Company will not file or make any request by the Commission for amendments amendment or post-effective amendment to the Registration Statement or amendments any amendment or supplements supplement to the Prospectus to which the Underwriter has objected in writing within a reasonable time after being furnished copies thereof.
(b) The Company will use its best efforts to cause the Registration Statement to become effective at the earliest possible time and will advise the Underwriter immediately and confirm that advice in writing (i) of the effectiveness of the Registration Statement, (ii) if any post-effective amendment thereto, any supplement to the Prospectus or for any amended Prospectus shall have been filed, (iii) of any request of the Commission to amend or supplement the Registration Statement or Prospectus or to provide additional information, and (iiiv) 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, state or other jurisdiction or of the initiation or threat of any proceeding for any such purposespurpose. The Company will use its best efforts to prevent the issuance of any stop order or suspension order and to obtain promptly the withdrawal of any such stop order or suspension order.
(c) The Company will promptly deliver to the Underwriter and to Bryax Xxxx XXX, without charge, (i) one signed copy of the Registration Statement, as originally filed, each amendment thereto, and each post-effective amendment thereto filed at any time when a prospectus relating to the Notes is required to be delivered under the Act, (ii) one signed copy of each consent and certificate included or incorporated by reference in, or filed as an exhibit to the Registration Statement as amended or supplemented, and (iii) conformed copies of the Registration Statement, as originally filed, each amendment thereto, and each post-effective amendment thereto filed at any time when a prospectus relating to the Notes is required to be delivered under the Act or the Rules and Regulations, without exhibits, as the Underwriter may reasonably require. The Company will promptly deliver, without charge, to the Underwriter and such others whose names and addresses are designated by the Underwriter: (A) from time to time until the effective date of the Registration Statement, as many printed copies as the Underwriter may reasonably request of any amendment preliminary prospectus filed with the Commission prior to the effective date of the Registration Statement and (B) as soon as possible after the Registration Statement becomes effective, (iv) if and from time to time thereafter, as many printed copies 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) Underwriter may reasonably request of the happening Prospectus and 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 amended 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 supplemented 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 During the first business day after period of time in which 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 Prospectus 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 of the Prospectus (and of any amendment or supplement Company will comply to the Prospectus) best of its ability with the Act and the Rules and Regulations so as such Underwriter or dealer may reasonably requestto permit the continuance of sales of and dealings in the Notes under the Act and the Exchange Act and will keep current in the filing of all material reports and forms required to be filed with any regulatory authority having jurisdiction over the Company.
(e) If during If, at any time when a prospectus relating to the period specified in Section 5(d)Notes is required to be delivered under the Act or the Rules and Regulations, 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 occurs which causes the Prospectus in order as then amended or supplemented to 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 when the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Underwritersat any time, it is necessary to amend or supplement the Prospectus to comply with applicable lawthe Act or the Rules and Regulations, forthwith to the Company will promptly notify the Underwriter and promptly prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the ProspectusRegistration Statement, as so amended an appropriate filing pursuant to Section 13 or supplemented, will not in the light 14 of the circumstances when it is so delivered, Exchange Act correcting such statement or omission or an amendment effecting such compliance and deliver in connection therewith such Prospectus or Prospectuses to the Underwriter in such quantity as may be misleading, or so that necessary to permit compliance with the Prospectus will comply with applicable law, requirements of the Act and to furnish to each Underwriter the Rules and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request in writingRegulations.
(f) Prior The Company will use its best efforts to any public offering of qualify the Shares, to cooperate with you and counsel Notes 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 may requestreasonably have designated in writing and will make such applications, to continue such registration or qualification in effect so long as required for distribution of the Shares and to file such documents and consents to service of process or other documents process, and furnish such information as may be necessary in order to effect such registration or qualification; providedreasonably required for that purpose, however, provided that the Company shall not be required in connection therewith to register or qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction in which where it is not now so qualified or required to take any file such a consent or where such action that would subject it the Company 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 subject. The Company will, from time to time, prepare and file such statements, consents, reports, and other documents as are or may be required to continue such qualifications in effect for so subjectlong a period as the Underwriter may reasonably request for distribution of the Notes.
(g) To mail and The Company will make generally available to its stockholders security holders as soon as practicable practicable, but in any event not later than 16 months after the Effective Date, 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 in the manner contemplated by Rule 158 under the Act, which need not be certified by independent public accountants unless required by the Act or the Rules and to Regulations) covering a period of at least 12 months commencing after the Effective Date and will advise you the Underwriter in writing when such statement has been so made available.
(h) During The Company will apply the period net proceeds from the offering 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 Notes in accordance with the Commission or any national securities exchange on which any class of securities of uses set forth in the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably requestProspectus.
(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 The Company will, for a period of three five years after from the date Closing Date, deliver to the Underwriter copies of this Agreement(A) annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act, (B) every press release released by the Company, and (C) such additional documents and information as the Underwriter may from time to time reasonably request. The Company will deliver to the Underwriter similar reports with respect to all significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(j) 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 applicable Closing Date or any Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the SharesNotes.
(k) If The Company will comply with the Registration Statement at Act, the time Exchange Act, the Rules and Regulation and the rules and regulations of the effectiveness Commission under the Exchange Act (the "Exchange Act Rules and Regulations"), so as to permit the continuance of this Agreement does not cover sales and dealings under the Act, the Exchange Act, the Rules and Regulations and the Exchange Act Rules and Regulations, and the Company will keep current in the filings of all material reports and forms required to be filed with any regulatory body having jurisdiction over the securities of the SharesCompany, to file including, without limitation, the Commission.
(l) 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 period of 120 days from the date of this Agreementthe Prospectus, the Company will not, without the prior written consent of the Underwriter, directly or indirectly, issue, sell, contract to sell, grant any option for the sale of, or otherwise transfer or dispose of any debt securities of the Company which mature more than one year after the Closing Date and which are substantially similar to the Notes.
(m) None of the Company or any of its respective directors, officers or controlling persons, will take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or designed to cause or result in, or that reasonably might be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(n) The Company has or will have, on or before the Closing Date, furnished to the Trustee the resolutions, certificates and other instruments and cash, if any, required to be delivered prior to or upon the issuance of the Notes to be delivered on the Closing Date pursuant to the provisions of the Indenture. The Company will request the Trustee to authenticate the Notes pursuant to Articles First and Second of the Indenture. The Company will, on or before the Closing Date, be able to comply with all other conditions with respect to the authentication of the Notes imposed by the Indenture.
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 to be declared effective before the offering of the Shares may commence, the Company will use its best efforts 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 Preliminary 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 4 4 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 business, assets, condition (iv) if the Company is required to file a Rule 462(b) Registration Statement after the effectiveness financial or otherwise), results of this Agreementoperations or business prospects, 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 (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, one signed copies copy 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.
(c) To prepare . The copies of the Prospectus, Registration Statement and each amendment thereto furnished to you 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 pursuant to EDGAX, xxcept to the applicable period specified in Rule 424(bextent permitted by Regulation S-T.
(d) under the Act; during the period specified in Section 5(dThe Company will not (i) 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 to the 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 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 Preliminary 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 Preliminary 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 to the Underwriters a Prospectus is required by the Act to be delivered in connection with sales by any 5 5 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 thereof or supplement to the Prospectusthereto) as such Underwriter or dealer you may reasonably request.
. 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 EDGAX, xxcept to the extent permitted by Regulation S-T. The Company consents to the use of the Prospectus (eand of any amendment thereof 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 or condition shall exist as a result of which, that in the judgment of the Company or in the written opinion of counsel for to 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 amendment thereof 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 Underwriters 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 to 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 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 12-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(a11 (a) of the Act, and to advise you in writing when ; provided that such statement has been so made availablerequirement shall be deemed satisfied if the Company complies with the provisions of Rule 158 of the Act.
(hi) During the period of three years after one year 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.
(ik) To use its best efforts to list for quotation the Shares on the Nasdaq National Market and to maintain the listing If Rule 430A of the Shares on Act is employed, the Nasdaq National Market for 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.
(l) For a period of three years 180 days after the date hereof (the "Lock-up Period"), without the prior written consent of Merrxxx Xxxcx xxx Saloxxx Xxxxx Xxxnxx, xxe Company will not offer, sell, contract to sell or otherwise dispose of any shares of common stock of the Company (or any securities convertible into or exchangeable or exercisable for shares of common stock of the Company) or grant any options or warrants to purchase shares of common stock of the Company exercisable within the Lock-up Period, except for (A) sales to the Underwriters pursuant to this AgreementAgreement or (B) the grant of options in the ordinary course of business pursuant to the Gabelli Asset Management Inc. 1999 Stock Award and Incentive Plan (provided that any recipient of options exercisable within 180 days of the date hereof shall execute an agreement for the benefit of the Underwriters not to transfer such options (or shares of common stock underlying such options) for the remainder of such 180-day period).
(jm) 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 Preliminary 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 Class A 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.
(kn) If The Company will use its best efforts to have the Registration Statement at Class A 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