Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations. (b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order. (c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement. (d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be, (e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification. (f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request. (g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative: (i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and (ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 4 contracts
Sources: Underwriting Agreement (Amcor Capital Corp), Underwriting Agreement (Amcor Capital Corp), Underwriting Agreement (Amcor Capital Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause If, at the Registration Statement time this Agreement is executed and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any timedelivered, 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with it is necessary for a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Shares may commence, the Company will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective. If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b) under the Securities Act, any event occurs as a result of which the Time of Sale Information would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Company will (i) notify promptly the Representatives so that any use of the Time of Sale Information may cease until it is amended or supplemented; (ii) amend or supplement the Time of Sale Information to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Company, its affiliates or its filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (ivsuch purpose or any examination pursuant to Section 8(e) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment Securities Act relating to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date Section 8A of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Securities Act in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(bShares; (iii) of the Rules and Regulations), and will furnish receipt by the Representative with copies Company of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation notification with the Representative, at or prior respect to the time suspension of the Registration Statement becomes effective, to qualify qualification of the Securities Shares for offering and sale under in any jurisdiction or the securities laws institution or threatening of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required any proceeding for such purpose; providedand (iv) within the period of time referred to in Section 5(h) hereof, howeverof any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the ProspectusOperating Company, or any amendments subsidiaries thereof, taken as a whole, or supplements thereto. If at of any time when a prospectus relating event that comes to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result attention of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, Operating Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the ActSecurities 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 notify make every reasonable effort to obtain the Representative promptly and prepare withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 Rule 424(b) under the Securities Act before the close of business on the Act, each such amendment or supplement to be satisfactory to 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 request.
(g) During a period of three (3) years after first business day immediately following the date hereof. As used in this Agreement, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect “subsidiaries” shall mean all of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (wholly-owned and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts partially-owned direct and indirect subsidiaries of the Company and its subsidiary are consolidatedthe Operating Company.
Appears in 4 contracts
Sources: Underwriting Agreement (Jernigan Capital, Inc.), Underwriting Agreement (Jernigan Capital, Inc.), Underwriting Agreement (Jernigan Capital, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 3 contracts
Sources: Underwriting Agreement (Lasik America Inc), Underwriting Agreement (Lasik America Inc), Underwriting Agreement (Lasik America Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives is necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the 12 Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly and prepare and file such prospectus or prospectuses as may be necessary to permit compliance with the Commission an appropriate amendment or supplement in accordance with requirements of Section 10 10(a)(3) of the Securities Act, each such amendment or supplement to be satisfactory to 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 request.
(gd) During The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-Effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a period prospectus relating to the Stock is required under the Securities Act, as many copies of three the Prospectus, in final form or as thereafter amended or supplemented, as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (39) years months or more after the effective date hereof, of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will furnish make generally available to its stockholders, stockholders as soon as practicable, each annual report but not later than fifteen (including financial statements audited 15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by independent public accountants), the Underwriters and each report on Form 10-KSB (or 10-K, by dealers under the securities laws of such jurisdictions as the case Representatives may be), including each amendment thereto, a copy designate and at the request of any report on Form 10-QSB (the Representatives will make such applications and furnish such consents to service of process or 10-Q, other documents as may be required of it as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect issuer of the CompanyStock for that purpose; provided, however, that the Company shall not be required to qualify to do business or its affairs which was released or prepared by or on behalf to file a general consent (other than that arising out of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) offering or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and its subsidiary file such statements and reports as are consolidated.or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the
Appears in 3 contracts
Sources: Underwriting Agreement (Go2net Inc), Underwriting Agreement (Go2net Inc), Underwriting Agreement (Go2net Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters Public Offering of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof objected, or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations. The Company will not distribute or otherwise use any issuer free-writing prospectus without the consent of the Underwriter.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice such advice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 430A, and when any post-effective amendment to the Registration Statement becomes 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution institution, or threat, 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threateningthreat, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort shall use its best efforts to obtain promptly the lifting prompt withdrawal of such the order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to the requirements of Rule 424(b)(1) (or, if applicable and if consented to by 424 under the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementAct.
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Underwriter in connection with the offering of the Securities Public Offering which differs from the corresponding prospectus Prospectus on file at with the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations)), and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriter shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may designate to permit the sales and continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended Act and by the Rules and Regulations, as from time to time in force, so far as may be necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' CounselUnderwriter’s counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriter 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 satisfactory to Underwriters' Counselthe Underwriter, and the Company will furnish to the Underwriters Underwriter copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Underwriter may request.
(g) During As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company’s fiscal year), the Company shall make generally available to its security holders, and to the Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, covering a period of three at least 12 consecutive months after the effective date of the Registration Statement.
(3h) years The Company will furnish to the Underwriter, without charge, at such place as the Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriter may request.
(i) On or before the effective date of the Registration Statement, the Company shall provide the Underwriter with copies of duly executed, and enforceable agreements pursuant to which, for a period of 12 months from the effective date of the Registration Statement, the officers, directors and employees of the Company and certain holders of shares of Common Stock designated by the Underwriter agree that it or he or she will not directly or indirectly, sell or otherwise dispose of such Common Stock beneficially owned by them (aggregating not less than 5,793,111 shares of Common Stock)without the prior written consent of the Underwriter (the “Lock-up Agreements”). On or before the Initial Closing, the Company shall deliver instructions to the Transfer Agent for its Common Stock to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company’s ledgers.
(j) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under “Use of Proceeds” in the Prospectus.
(k) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, pursuant to Rule 463 under the Act) from time to time under the Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(l) The Company shall furnish to the Underwriter as soon as practicable prior to each of the date hereof, the date of the Initial Closing and of each Additional Closing, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company will furnish which have been read by the Company’s independent public accountants, as stated in its letter to its stockholders, be furnished pursuant to Section 5(h) hereof.
(m) The Company shall as soon as practicable, each annual report (including financial statements audited by independent public accountants)i) but in no event more than five (5) business days before the effective date of the Registration Statement, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, file a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-KA with the Commission providing for the registration of the Securities under the Exchange Act.
(n) Until the completion of the distribution of the Units, including the Company shall not without the prior written consent of the Underwriter, issue, directly or indirectly, any amendment thereto, and will promptly deliver a copy of each such report press release or other communication or hold any press conference with respect to the Representative and will deliver to Company or its activities or the Representative:
(i) every press release and every material news item or article of interest to offering contemplated hereby, other than any trade releases issued in the financial community in respect ordinary course of the Company, or its affairs which was released or prepared by or on behalf of ’s business consistent with past practices with respect to the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated’s operations.
Appears in 3 contracts
Sources: Underwriting Agreement (Lightspace Corp), Underwriting Agreement (Lightspace Corp), Underwriting Agreement (Lightspace Corp)
Covenants and Agreements of the Company. (a) The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(ai) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange 1934 Act before termination of the offering of the Preferred Shares by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange 1934 Act or the Rules and Regulations.
(bii) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, or 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(ciii) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriters) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.by
Appears in 2 contracts
Sources: Underwriting Agreement (Omnicorder Technologies Inc), Underwriting Agreement (Omnicorder Technologies Inc)
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration StatementEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act Act, before termination of the offering of the Preferred Shares by the Underwriters Underwriters, of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have reasonably objected within two (2) business days after its receipt thereof based on such amendment or which is supplement not being in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative and confirm the notice Representatives promptly after having knowledge thereof, in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order order, or of the initiation or the threatening threat of the initiation, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threateningthreat of the initiation, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to promptly obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance reasonably satisfactory to the RepresentativeRepresentatives) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission Commission, pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeRepresentatives, pursuant to Rule 424(b)(4)) ), not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementEffective Date.
(d) The Company will give the Representative Representatives notice of its intention to file or to prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities Shares which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representatives or Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Underwriters' Counsel"), shall object based on such amendment or supplement not being in compliance with the Act or the Regulations.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeRepresentatives, at or prior to the time the Registration Statement becomes effectiveEffective Date, to qualify the Securities Shares for offering and sale under the securities laws of such jurisdictions as the Representative Representatives may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be -------- ------- required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Representatives agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities Shares in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Representatives promptly and will 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 satisfactory to Underwriters' Counsel, Act and the Section 4(a) hereof. The Company will also furnish to the ------- Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may reasonably request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which ------- statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the Effective Date.
(h) During a period ending on the earlier of three (3i) five (5) years after the date hereofhereof and (ii) the date when the Company no longer has a class of equity securities registered under the Exchange Act, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the RepresentativeRepresentatives:
(i) financial statements of the Company for each quarter, in the form filed with the Commission;
(ii) concurrently with furnishing the above-mentioned annual reports to its stockholders, 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf at the direction of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Representatives may reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are required to be consolidated in accordance with Regulation S-X, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent (the "Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock for so long as the Company has a class of equity securities registered under the Exchange Act.
(j) The Company will furnish to the Representatives or on the Representatives' order, without charge, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two (2) of such copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus related to the offering of the Shares prepared after the Effective Date, in each case as soon as available and in such quantities as the Representatives may request.
(k) On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. During the twelve (12) month period commencing on the Effective Date, the Company shall not, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except up to [_____] shares of Common Stock reserved for grants of options under the Company's stock option plans as described in the Prospectus. The Company will cause the Transfer Agent to place "stop transfer" orders on the Company's stock ledgers. During the twelve (12) month period commencing with the Effective Date, the Company shall not file any registration statement with the Commission on Form S-8 without the prior written consent of ▇▇▇▇▇▇▇▇▇▇.
(l) Neither the Company nor any of its officers, directors or stockholders, nor any of their respective affiliates or Associates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Shares in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall use its best efforts to timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents, when filed, will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representatives, as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letter to be furnished pursuant to Section 6(j) hereof. -------
(p) The Company shall use its best efforts to cause the Common Stock to be quoted on Nasdaq or a national securities exchange for a period of seven (7) years from the date hereof, and shall use its best efforts to maintain the Nasdaq quotation or exchange listing of the Common Stock to the extent outstanding.
(q) For a period of three (3) years from the Closing Date, on a quarterly basis, the Company shall instruct the Transfer Agent to furnish to the Representatives, at the Company's sole expense, the list of holders of all of the Company's securities and a list of Depository Trust Company "participant holders."
(r) The Company hereby agrees, as soon as practicable, but in no event more than thirty (30) days from the Effective Date, to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion until the earlier of (i) seven (7) years from the Effective Date and (ii) the first date when the Company no longer has a class of equity securities registered under the Exchange Act.
(s) The Company hereby agrees that, for a period of thirteen (13) months from the Effective Date, it will not, without the written consent of the Representatives, which consent will not be unreasonably withheld, and (A) the written consent of a majority of the Company's stockholders who are not affiliates of the Company at such time or (B) the vote of a majority of such non-affiliate stockholders, voting at a duly held stockholder's meeting, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement permitting the grant, issue or sale of any shares of Common Stock or other securities of the Company (i) in an amount greater than an aggregate of 1,351,923 shares of Common Stock, (ii) at an exercise or sale price per share less than either the fair market value of the Common Stock on the date of grant or sale or the Offering Price and (iii) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company.
(t) Until the completion of the distribution of the Shares, and for twenty (25) days thereafter, except to the extent required to do so by applicable law or the Regulations, the Company shall not, without the prior written consent of the Representatives and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby.
(u) Until the earlier of (i) seven (7) years from the date hereof, (ii) the sale to the public of the Representatives' Shares and (iii) the first date in which the Company no longer has a class of equity securities registered under the Exchange Act, the Company will use reasonable efforts not to take any action or actions (including any failure to so act) which may prevent or disqualify the Company's use of Form S-3 (or other appropriate form) for the registration under the Act of the Representatives' Shares.
(v) The Company shall enter into an investment banking agreement with ▇▇▇▇▇▇▇▇▇▇ which, among other things, will grant to ▇▇▇▇▇▇▇▇▇▇ a right of first refusal, for a period of eighteen (18) months after the Effective Date, with respect to any investment banking services, including, and without limitation, any sales of securities to be
Appears in 2 contracts
Sources: Underwriting Agreement (Careside Inc), Underwriting Agreement (Careside Inc)
Covenants and Agreements of the Company. The Company covenants and agrees --------------------------------------- with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A of the of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective as soon as practicable after the execution of this Agreement, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Date, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earning statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain 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 requestwithdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeRepresentatives and, upon request, to each of the Underwriters:
(i) every press release as soon as practicable after the end of each fiscal year, copies of each annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and every material news item or article statements of interest to income, stockholders' equity and cash flows for the financial community in respect year then ended and the opinion thereon of the Company's independent public accountants, or and each other report furnished by the Company to its affairs which was released or prepared by or on behalf of the Companystockholders; and
(ii) copies of any additional other reports (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such; (iii) as soon as practicable after the filing thereof, each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report or financial statement filed by the Company with the Commission, or the NASD or any securities exchange; and (iv) from time to time such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative as you may request. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to maintain the listing of the Stock on the New York Stock Exchange.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Rules and Regulations) during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set, other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus.
(l) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of Rules and Regulations, the Company will furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(m) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(n) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(o) Prior to each of the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(p) Prior to each of the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the first Closing Date, the Company will use its best efforts to provide to you copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Schein Pharmaceutical Inc), Underwriting Agreement (Schein Pharmaceutical Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Securities to the public by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice same in writing, (i) when the Registration Statement, as amended, becomes effective, when any post-effective with amendment to the Commission Registration Statement 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 post-effective amendment to the Registration Statement becomes effective430A, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the outcome of which may result in the suspension of the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of any 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) with the Commission, or transmit the Prospectus by a means reasonably calculated to result in filing the same with the Commission Commission, pursuant to Rule 424(b)(1) of the Rules and Regulations (or, if applicable and if consented to by the Underwriter, pursuant to Rule 424(b)(4) of the Rules and Regulations) within the time period specified in Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriter, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement).
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of any of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such amendment or supplement to which the Underwriter or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, its counsel ("Underwriter's Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distributiondistribution contemplated hereby, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Underwriter agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Exchange Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, Regulations so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If If, at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Underwriter's Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus prospectus to comply with the Act, the Company will notify the Representative Underwriter 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 satisfactory to Underwriters' Underwriter's Counsel, and the Company will furnish to the Underwriters Underwriter copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Underwriter may request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), ) and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy unaudited quarterly reports of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative earnings and will deliver to the RepresentativeUnderwriter:
i) concurrently with furnishing such quarterly reports to its stockholders statements of income of the Company for such quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial and accounting officer;
ii) concurrently with furnishing such annual reports to its stockholders, 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 the Company's independent certified public accountants;
iii) as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its respective affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses respective business which the Representative Underwriter may request. During such three (3)-year five-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock.
(j) The Company will furnish to the Underwriter, without charge and at such place as the Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (one of which will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriter may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Underwriter with originally-executed copies of duly executed, legally binding and enforceable Lock-Up Agreements which are in form and substance satisfactory to the Underwriter. On or before the Closing Date, the Company shall deliver instructions to its transfer agent authorizing such transfer agent to place appropriate legends on the certificates representing the securities of the Company subject to the Lock-Up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company agrees that, for the duration of the Lock-Up Period (as defined in SECTION 1(w), it and its future subsidiaries will not, without the prior written consent of the Underwriter (i) issue, sell, contract or offer to sell, grant an option for the purchase or sale of, assign, transfer, pledge, hypothecate, distribute or otherwise dispose of, directly or indirectly, any shares of capital stock or any option, right or warrant with respect to any shares of capital stock or any security convertible, exchangeable or exercisable for capital stock, provided, that the Company may, without consent of the Underwriter, issue securities (a) upon the exercise of any outstanding stock options or warrants granted or issued on or prior to the date hereof, and (b) subject to the terms of Section 4(u) of this Agreement, up to an additional 192,283 shares of Common Stock issuable upon the exercise stock options which may be granted pursuant to the Company's 1997 Stock Option Plan, or (ii) file any registration statement for the offer or sale of securities issued or to be issued by the Company or any present or future subsidiaries.
(m) Neither the Company nor any of its officers, directors, stockholders or affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to stabilize or manipulate the price of any securities of the Company, or which might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any such securities.
(n) The Company shall apply the net proceeds from the sale of the Securities offered to the public in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(o) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, any Form SR required by Rule 463 under the Act) from time to time under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents will comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(p) The Company shall furnish to the Underwriter as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date hereof, the Closing Date or the relevant Option Closing Date, as the case may be) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to SECTION 6(j) hereof.
(q) The Company shall cause the Common Stock to be quoted on the Nasdaq SmallCap Market and, for a period of five (5) years from the date hereof, use its best efforts to maintain the Nasdaq SmallCap Market quotation of the Common Stock to the extent outstanding.
(r) For a period of five (5) years from the Closing Date, the Company shall at the request of the Underwriter, furnish or cause to be furnished to the Underwriter and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and (ii) a list of holders of all of the Company's securities.
(s) For a period of five (5) years from the Closing Date, the Company shall, at the Company's sole expense, (i) promptly provide the Underwriter, upon any and all requests of the Underwriter, with a "blue sky trading survey" for secondary sales of the Company's securities, prepared by counsel to the Company, and (ii) take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the "blue sky" laws of those jurisdictions, provided that such jurisdictions do not require the Company to qualify as a foreign corporation.
(t) As soon as practicable, but in no event more than thirty (30) days after the effective date of the Registration Statement, the Company agrees to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than five (5) years.
(u) Without the prior written consent of the Underwriter, the Company hereby agrees that it will not, for the duration of the Lock-UP Period, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement (i) permitting the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (a) at an exercise or sale price per share that is less than the greater of the initial public offering price of the Shares set forth herein or the fair market value per share of the Common Stock on the date of grant or sale, or (b) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company on the date of grant or issuance; or (ii) permitting the existence of stock appreciation rights, phantom options or similar arrangements; or (iii) permitting the payment for such securities with any form of consideration other than cash; or (iv) permitting the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options, warrants or other contract rights to exceed 600,000 (excluding the Underwriter's Warrants and the Underwriter's Option to purchase 345,000 shares to cover-allotments, if any); or (v) to any direct or indirect beneficial holder on the date
Appears in 2 contracts
Sources: Underwriting Agreement (Cumetrix Data Systems Corp), Underwriting Agreement (Cumetrix Data Systems Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort shall use its best efforts to obtain promptly the lifting prompt withdrawal of such the order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriter, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Underwriter in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriter or O▇▇▇▇▇, H▇▇▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ LLP ("Underwriter's Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Underwriter agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Underwriter's Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriter 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 satisfactory to Underwriters' Underwriter's Counsel, and the Company will furnish to the Underwriters Underwriter copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Underwriter may request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, in the event the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeUnderwriter:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(i) concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
(ii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iii) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iiiv) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Underwriter may request. .
(v) During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(vi) The Company will maintain a Transfer Agent and Warrant Agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Underwriter's order, without charge, at such place as the Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriter may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Underwriter with true copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of 180 days subsequent to the date of the final closing relating to the Offering, which Offering will terminate 90 days after the date the final Prospectus included in the Registration Statement is declared effective under the Securities Act of 1933, as amended, unless extended for an additional 90 days, the officers and directors of the Company, all holders of shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, agree that it or he or she will not directly or indirectly, issue, offer to sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Underwriter and the Company (the "Lock-up Agreements"
Appears in 2 contracts
Sources: Underwriting Agreement (Coates Motorcycle Co LTD), Underwriting Agreement (Coates Motorcycle Co LTD)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement and any amendments thereto to has become effective with and the Commission as promptly as practicable time and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Securities Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Securities Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company or any amendment subsidiaries thereof, taken as a whole, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.under
Appears in 2 contracts
Sources: Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.), Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and you promptly and, if requested by you, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions time and date 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 filing of any post-effective amendment to the Registration Statement becomes effectiveor any amendment or supplement to any Preliminary Prospectus or the Prospectus, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b), (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purposesuch purposes, (iv) of the receipt of any comments from the Commission; and (v) of when any request by supplement to the Commission for Prospectus, any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed or distributed, and (vi) within the period of time referred to in Section 5(h) hereof, of any change in the Company’s condition (financial or other), business, properties, net worth or results of operations, or of any event that comes to the attention of the Company, in each case that makes any statement made in the Registration Statement Statement, the Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will file with the Commission the Prospectus in accordance with Rule 424(b) before the close of business on the second business day immediately following the date hereof and will provide the Underwriters, without charge, copies of the form of such Prospectus, in such number as the Underwriters may reasonably request.
(b) The Company will furnish to you, without charge, four signed duplicate copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representatives, be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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.
(j) The Company will make generally available to its security holders a consolidated earnings statement covering a twelve-month period commencing with the first fiscal quarter after the “effective date” (as defined in Rule 158 promulgated under the Act) of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act and the provisions of Rule 158 promulgated under the Act, each it being understood and agreed that such amendment earnings statement shall be deemed to have been made available by the Company if the Company is in compliance with its reporting obligations pursuant to the Exchange Act, if such compliance satisfies the conditions of Rule 158, and if such earnings statement is made available on ▇▇▇▇▇.
(k) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus, the Company will not, directly or supplement indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (ii) 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 such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be satisfactory settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on behalf of the Underwriters' Counsel. Notwithstanding the foregoing, if (A) during the last 17 days of the 90-day lock-up period, the Company issues an earnings release or other press release of material information or a material event relating to the Company occurs or (B) prior to the expiration of the 90-day lock-up period, the Company announces that it will release its earnings results during the 16-day period beginning on the last day of the 90-day lock-up period, the 90-day lock-up period shall be extended by, and the restrictions imposed by this Agreement will continue to apply until the expiration of, the 18-day period beginning on the date of the issuance of the earnings or other press release or the occurrence of the material event; provided, however, that such extension of the lock-up period shall not apply if, (x) the Underwriters meet the requirements set forth in paragraph (a)(1)(iii) of Rule 139 under the Act, (y) at the expiration of the 90-day lock-up period, the Common Stock are “actively traded securities” (as defined in Regulation M under the Exchange Act) and (z) the Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Act in the manner contemplated by NASD Rule 2711(f)(4) of the FINRA Manual. If the lock-up period is so extended, the Company shall not engage in any transaction that may be restricted by this Agreement during the extended lock-up period unless the Company requests and receives prior written confirmation from the Representatives that the restrictions imposed by this Agreement have expired. The Company shall promptly notify the Representatives of any earnings release or press release or event that may give rise to an extension of the initial 90-day lock-up period. The restrictions contained in the preceding paragraph shall not apply to (1) the Shares to be sold hereunder, (2) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant, settlement of restricted stock or the conversion of a security outstanding on the date hereof pursuant to stock plans or otherwise and disclosed in the Time of Sale Information, (3) the issuance by the Company of shares, restricted stock, or options to purchase shares of Common Stock pursuant to the Company’s equity plans disclosed in the Time of Sale Information, (4) the filing by the Company of a registration statement on Form S-8 or a successor form thereto described in the Preliminary Prospectus and the Time of Sale Information pertaining to the Company’s employee benefit plans and (5) beginning on the day that is 61 days from the date hereof, the issuance of Common Stock directly to a seller or sellers of a business or assets as part of the purchase price in connection with acquisitions thereof by the Company, provided that the aggregate number of shares of Common Stock that the Company may offer pursuant to this clause (5) shall not exceed 5% of the total number of shares of Common Stock issued and outstanding as of the date hereof and provided, further, that the Company shall cause all such recipients of shares of Common Stock pursuant to this clause (5) to enter into a “lock-up” agreement substantially in the form of Exhibit A hereto (each, a “Lock-Up Agreement”) pursuant to which such recipient will be agree to be subject to all of the restrictions set forth therein for the remainder of the lock-up period set forth in the above paragraph; provided, further, that in the case of clauses (2) and (3) of this paragraph, the Company shall cause all officers and directors that are recipients of shares of Common Stock or any security convertible into or exercisable for shares of Common Stock to enter into a Lock-Up Agreement. For purposes of this Agreement insofar as it relates to Lock-Up Agreements, “officer” has the meaning ascribed thereto in Rule 16a-1 promulgated under the Exchange Act. The Company will further cause each officer and director to furnish to the Underwriters copies Representatives a Lock-Up Agreement prior to the date hereof. Any transfers, sales or other actions taken by any such officer or director that is not in violation of such amendment his Lock-Up Agreement shall not be deemed to be an action of the Company that is prohibited by the first paragraph of this clause (k) solely by virtue of his status as an officer or supplement as soon as available and in such quantities as the Underwriters may requestdirector.
(gl) During a period of three (3) years after Prior to the date hereofClosing Date or the Additional Closing Date, as the case may be, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus; provided, however, the Company will be deemed to have furnished such financial statements or information to the extent it is made publicly available on ▇▇▇▇▇.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(o) The Company will timely file with the NASDAQ Global Select Market (“NASDAQ”) all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(p) The Company has engaged and shall maintain, at its expense, a transfer agent and, if necessary u
Appears in 2 contracts
Sources: Underwriting Agreement (Crouse Lawrence D), Underwriting Agreement (Heartland Express Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Representative in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters Representative copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Representative may request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company Company, its subsidiaries (and any future subsidiary) or its businesses which the Representative may request. .
(vii) During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent and Warrant Agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Representative or on Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Underwriter with originally-executed copies of duly executed, legally binding and enforceable Lock-Up Agreements which are in form and substance satisfactory to the Underwriter. On or before the Closing Date, the Company shall deliver instructions to its transfer agent authorizing such transfer agent to place appropriate legends on the certificates representing the securities of the Company subject to the Lock-Up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company agrees that, for a period of twelve (12) months commencing on the effective date of the Registration Statement, and except as contemplated by this Agreement, it and its present and future Subsidiaries will not, without the prior written consent of the Underwriter issue, sell, contract or offer to sell, grant an option for the purchase or sale of, assign, transfer, pledge, distribute or otherwise dispose of, directly or indirectly, any shares of Common Stock or any option, right or warrant with respect to any shares of Common Stock or any type of capital stock having voting or dividend rights on a parity with or superior to the Common Stock, except pursuant to stock options or warrants issued on the date hereof, for cash at less than the greater of the initial public offering price of shares of Common Stock or the then market value of such shares.
(m) None of the Company, the Subsidiaries, nor any of its or their officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(n) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(o) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(p) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in its letter to be furnished pursuant to Section 6(j) hereof.
(q) The Company shall cause the Units, the Common Stock and the Redeemable Warrants to be quoted on the Nasdaq SmallCap Stock Market and for a period of seven (7) years from the date hereof, use its best efforts to maintain the Nasdaq SmallCap Stock Market listing of the Units, if the securities underlying the Units are not separately tradable, the Common Stock and the Redeemable Warrants to the extent outstanding.
(r) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Units, the Common Stock and the Redeemable Warrants (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(s) As soon as practicable, but in no event more than thirty (30) days from the effective date of the Registration Statement, the Company agrees to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years. (t) Until the completion of the distribution of the Firm Securities and the Option Securities, the Company shall not without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) Commencing one year from the date hereof, to pay the Underwriter a warrant solicitation fee equal to five percent (5%) of the exercise price of the Redeemable Warrants, payable on the date of the exercise thereof on terms provided in the Public Warrant Agreement. The Company will not solicit the exercise of the Redeemable Warrants through any solicitation agent other than the Underwriter. The Underwriter will not be entitled to any warrant solicitation fee unless the Underwriter provides bona fide services in connection with any warrant solicitation and the investor designates, in writing, that the Underwriter is entitled to such fee.
(v) For a period equal to the lesser of (i) three (3) years from the date hereof, and (ii) the sale to the public of the Representative's Securities, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form SB-2 or Form S-1 (or other appropriate form) for the registration under the Act of the Representative's Securities.
(w) For a period of five (5) years after the effective date of the Registration Statement, the Representative shall have the right to designate for election one (1) individual to the Company's Board of Directors (the "Board"). Such person shall be mutually acceptable to the Company and the Representative. In the event the Representative elects not to exercise such right, then it may designate one (1) individual to att
Appears in 2 contracts
Sources: Underwriting Agreement (Truevision International Inc), Underwriting Agreement (Truevision International Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representatives be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will use its reasonable best efforts to cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. If required, the Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Shares.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to 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 request.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (including financial “FINRA”) or the Nasdaq Global Market (“Nasdaq”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request, provided that the Company’s obligation pursuant to this Section 5(k) shall be satisfied to the extent the Company files or furnishes any such documents or report to ▇▇▇▇▇.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable out-of-pocket costs and expenses (including, without limitation, the fees and expenses of the Underwriters’ outside attorneys) incurred by the Underwriters in connection herewith, not to exceed $100,000.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretoat the reasonable request of the Underwriters, a copy the Company will furnish to you, as promptly as possible following your request, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with Nasdaq all documents and notices required by the Nasdaq of companies that have or will issue securities that are consolidatedtraded on the Nasdaq.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement, Underwriting Agreement (Leap Therapeutics, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock as contemplated herein and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months 18 or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Date, three (3) signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the ActRepresentatives, each such amendment or supplement use its best efforts to be satisfactory to Underwriters' Counselobtain the withdrawal thereof.
(g) As and when required by the Rules and Regulations, and the Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants. During the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its stockholders and will deliver to the Representative:
Representatives, (i) every press release as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional information of a public nature concerning reports and financial statements furnished to or filed with the Company (and Commission or any future subsidiary) national securities exchange or its businesses which the Representative may requestNASD. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to maintain the inclusion of the Stock on the Nasdaq National Market (or on a national securities exchange) for a period of five (5) years after the effective date of the Registration Statement.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) The Company will not (i) directly or indirectly, offer, sell, assign, transfer, encumber, pledge, contract to sell, grant an option to purchase or otherwise dispose of, other than by operation of law, any shares of Common Stock 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 the Common Stock, whether any such transaction described in clauses (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set, other than (A) the Company's sale of Common Stock hereunder, (B) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing and (C) the issuance by the Company of any option to purchase any shares of Common Stock pursuant to its Stock Option Plan described in the Prospectus.
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of Rules and Regulations, the Company will furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(m) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(n) Prior to the Closing Date the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent.
(o) During the period of five (5) years hereafter, the Company will furnish to the Representatives and, upon request of the Representatives to each of the Underwriters, as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(p) The Company will use its 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 and to satisfy all conditions precedent to the delivery of the Firm Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Kos Pharmaceuticals Inc), Underwriting Agreement (Kos Pharmaceuticals Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will shall 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will shall advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, or 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 or authority of any proceedings for the suspension of the qualification of any of the Securities or the Representative's Securities for offering or sale in any jurisdiction or of the initiation, initiation or the threatening, threatening of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission or authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort shall use its best efforts to obtain promptly the lifting of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, or if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementAgreement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which that the Company proposes for use by the Underwriters in connection with the offering of the Securities which that differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or its counsel ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities and the Representative's Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company willshall, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities and the Representative's Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the UnderwriterRepresentative's Preferred Shares Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will shall notify the Representative 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 satisfactory to Underwriters' Counsel, and the Company will shall furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than 45 days after the end of the twelve-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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement that will be in the detail required by, and otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve consecutive months after the effective date of the Registration Statement.
(h) The Company shall, for so long as the Shares are registered under the Exchange Act, hold an annual meeting of stockholders for the election of directors within 180 days after the end of each of the Company's fiscal years and, within 150 days after the end of the Company's fiscal years, will provide the Company's stockholders with the audited financial statements of the Company as of the end of the fiscal year just completed prior thereto. Such financial statements shall be those required by Rule 14a-3 under the Exchange Act and shall be included in an annual report pursuant to the requirements of such Rule.
(i) During a period of three (3) seven years after the date hereof, the Company will shall furnish to its stockholders, as soon as practicablepracticable but no later than the end of the period specified in the immediately preceding paragraph, each if applicable, annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will shall deliver to the Representative:
i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company and the Subsidiary for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company and the Subsidiary as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company and the Subsidiary for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
iii) as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in respect of the Company, the Subsidiary or its their respective affairs which that was released or prepared by or on behalf of the CompanyCompany or the Subsidiary; and
(iivi) any additional information of a public nature concerning the Company or the Subsidiary (and any future subsidiarysubsidiaries) or its any of their businesses which that the Representative may reasonably request. During such three (3)-year seven-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary that is not so consolidated.
(j) The Company shall maintain a transfer agent, and if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company shall furnish or cause to be furnished to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (one of which copies shall be manually signed and shall include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(l) The Company has provided the Representative with true copies of duly executed, legally binding and enforceable agreements (collectively, the "Lock-Up Agreements") pursuant to which, for a period of twenty-four (24) months after the effective date of the Registration Statement, each of the Company's officers, directors, stockholders and all holders of securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock has agreed that, without the prior written consent of the Representative, such person or entity (each, a "Restricted Party") shall not directly or indirectly offer to sell, sell, grant any option for the sale of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein in accordance with the Rules and Regulations (all of the foregoing being referred to collectively as "Restricted Securities"). Notwithstanding the foregoing, a Restricted Party may transfer any or all of the Restricted Securities, either during the Restricted Party's lifetime or on the Restricted Party's death, by grant of a bona fide gift to any person, by will or intestate succession to the Restricted Party's immediate family or to a trust the beneficiaries of which are exclusively the Restricted Party's and/or a member or members of the Restricted Party's immediate family, or to any affiliate (within the meaning of the Rules and Regulations), associate, shareholders, employee or partner of the Restricted Party; provided, however, that in any such case it shall be a condition to the transfer that the transferee is receiving and holding the Restricted Securities subject to the provision of the LockUp Agreement, and there shall be no further transfer of such Restricted Securities except in accordance with such Lock-Up Agreement. In addition, during the 12 month period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exchangeable or exercisable for shares of Common Stock (other than upon the exercise or conversion of currently outstanding options, warrants, convertible securities and other rights to acquire shares of Common Stock (including the Representative's Warrants)). On or before the Closing Date, the Company shall deliver instructions to the transfer agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(m) Neither the Company nor the Subsidiary shall take, or permit any of their respective officers, directors, or stockholders, or any of their respective affiliates (within the meaning of the Rules and Regulations) to take, directly or indirectly, any action designed to, or that might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company or the Subsidiary.
(n) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company or the Subsidiary.
(o) The Company shall timely file all such reports, forms and other documents as may be required (including without limitation a Form SR as may be required pursuant to Rule 463 under the Act) from time to time under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed shall comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(p) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date, and each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(m) and (n) hereof.
(q) Unless otherwise agreed by the Company and the Representative, the Company shall cause the Common Stock to be quoted on the Nasdaq SmallCap Market, and for a period of seven years from the date hereof, shall use its best efforts to maintain the Nasdaq SmallCap Market quotation.
(r) For a period of five years from the Closing Date, the Company shall furnish to the Representative, as and to the extent requested by the Representative, at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Company's securities, (ii) the list of holders of all of the Company's securities, and (iii) a Blue Sky "Trading Survey" for secondary sales of the Compan
Appears in 2 contracts
Sources: Underwriting Agreement (Us Golf & Entertainment Inc), Underwriting Agreement (Us Golf & Entertainment Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(i) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every commercially reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior written consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(i) hereof, 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.
(h) During the Prospectus Delivery Period, the Company will file all documents required to be stated filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(j) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, each such amendment other than those arising out of the offering or supplement to be satisfactory to Underwriters' Counselsale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. If required, the Company will furnish use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the Underwriters copies application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such amendment or supplement Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as soon as available and required for the distribution of the Shares, but in such quantities as the Underwriters may request.
(g) During a period of three (3) years no event beyond one year after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 or 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including travel expenses and reasonable and documented fees of counsel for the Underwriters, excluding wages and salaries paid by you) reasonably incurred by you in connection herewith, subject to a maximum amount of $50,000; provided, however, that, other than reasonable and documented fees of counsel of the Underwriters, the Company will not reimburse you for any individual fee or expense in excess of $10,000 without having received the Company’s prior written consent.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), the Company agrees not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be reasonably expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration for the offer and sale by the Company of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than the filing of a registration statement pursuant to Form S-8 in connection with the Company’s equity incentive plans) or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule IV hereto to furnish to the Representative, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). The restrictions contained in the preceding sentence shall not apply to (A) the Shares to be sold hereunder, (B) the sale and issuance of Company securities pursuant to an existing contractual relationship of the Company in effect as of the date of this Agreement, (C) the issuance of shares of Common Stock, restricted stock units, stock appreciation rights, options to purchase Common Stock or performance units pursuant to employee benefit plans, qualified stock option plans, the Company’s equity incentive plans or other employee compensation plans in effect on the date of this Agreement or pursuant to currently outstanding restricted stock units, stock appreciation rights, options, warrants or rights, (D) the sale and issuance of Company securities on a pro rata basis to all holders of a class or series of outstanding securities of the Company, (E) the sale or issuance of securities in connection with an acquisition, a merger, a consolidation or sale or purchase of assets or in connection with a strategic alliance, investment, loan agreement, partnership, licensing or other joint venture or strategic transaction and (F) the conversion or exchange of options, warrants or other securities of the Company convertible into or exchangeable for Common Stock of the Company outstanding as of the date of this Agreement.
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, at the reasonable request of the Underwriters, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Adma Biologics, Inc.), Underwriting Agreement (Adma Biologics, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(i) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(i) hereof, 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.
(h) During the Prospectus Delivery Period (as defined below), the Company will file all documents required to be stated filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to the Underwriters each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestthereof.
(gj) During The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of three (3) years after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) During the period ending three years from the date hereof, the Company will promptly furnish to its stockholdersyou and, as soon as practicableupon your request, to each of the other Underwriters if not otherwise available on E▇▇▇▇, (i) a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer, director and shareholder of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waives such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy if not otherwise available on E▇▇▇▇, as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Federated National Holding Co), Underwriting Agreement (Federated National Holding Co)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) a. The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission 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 post-effective amendment to the Registration Statement thereto becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus 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, any Prepricing Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in the first sentence of Section 5(e) below, of any request by change in the Company's condition (financial or other), business, properties, net worth, results of operations, or prospects or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein not misleading 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 for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
b. The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
c. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state which you shall enter not previously have been advised (with a stop order or suspend such qualification at any time, the Company will make every effort reasonable opportunity to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any review such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiarysupplement) or its businesses to which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedyou have reasonably objected after being so advised.
Appears in 2 contracts
Sources: Underwriting Agreement (Inspire Insurance Solutions Inc), Underwriting Agreement (Inspire Insurance Solutions Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twelve (12) months from the effective date of the Registration Statement, each of the Company's stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representatives (collectively, the "Lock-up Agreements"). During the 12 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on Amex and, for a period of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than five (5) years.
(s) The Company hereby agrees that it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Common Stock; (ii) the payment for such securities with any form of consideration other than cash; or (iii) the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period equal to the lesser of (i) five (5) years from the date hereof, and (ii) the sale to the public of the Representative's Securities, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act of the Representative's Securities.
(v) For a period of five (5) years after the effecti
Appears in 2 contracts
Sources: Underwriting Agreement (Sma Real Time Inc), Underwriting Agreement (Sma Real Time Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company will notify the Representative promptly by telephone and (if requested by the Representative) will confirm such advice in writing, (1) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) if Rule 430A under the Securities Act is used, or the Prospectus is otherwise required to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act, (3) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (4) of the issuance by the Commission of any stop order (“Stop Order”) suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Preliminary Prospectus, the Prospectus, the Registration Statement or any amendment or supplement thereto, or refusing to permit the effectiveness of the Registration Statement, or the initiation of any proceedings for any of those purposes, (5) of the happening of any event during the period mentioned in paragraph (f) below which in the reasonable judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading, and (6) of the receipt of any comments from the Commission or the Blue Sky or securities authorities of any jurisdiction regarding the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto. The Company will use its best efforts to prevent the issuance of any Stop Order by the Commission or any notification from the Blue Sky or securities authorities of any jurisdiction suspending the qualification or registration of the Shares or shares of Common Stock issuable upon exercise of the Warrants (the Shares together with the Representative’s Warrant Shares, the “Securities”) for sale in such jurisdictions, and if at any time the Commission shall issue any Stop Order, or if the Blue Sky or securities authorities of any jurisdiction shall issue notification suspending the qualification or registration of the Securities, the Company will make every reasonable effort to obtain the withdrawal of such Stop Order or notification at the earliest possible moment. The Company will promptly advise the Representative of its receipt of any notification with respect to the suspension of the qualification or registration of the Securities for offer or sale in any jurisdiction or the initiation or threatening of any action or proceeding for such purpose. The Company will use its best efforts to effectuate the listing of its shares on the NASDAQ.
(b) Prior to any public offering of the Shares by the Underwriters, the Company will endeavor in good faith, in cooperation with the Representative and its counsel, to register or qualify the Securities for offer or sale, as may be required under the Blue Sky or securities laws, rules or regulations of such jurisdictions as the Representative may request; provided that in no event shall the Company be obligated to register or qualify to do business as a foreign corporation in any jurisdiction where it is not now so registered or qualified or to take any action which would subject it to general service of process, or to taxation as a foreign corporation doing business, in any jurisdiction where it is not now so subject. The Company will pay all fees and expenses relating to the registration or qualification of the Securities under such Blue Sky or securities laws of such jurisdictions as the Representative may designate (including legal fees of counsel for the registration or qualification of the Securities, and in all cases, all disbursements and expenses incurred by such counsel in connection therewith). After registration, qualification or exemption of the Securities for offer and sale, in such jurisdictions, and for as long as any offering pursuant to this Agreement continues, the Company, at the Representative’s request, will file and make such statements or reports, and pay the fees applicable thereto, at such times as are or may be required by the laws, rules or regulations of such jurisdictions in order to maintain and continue in full force and effect the registration, qualification or exemption for offer or sale of the Securities, in such jurisdictions. After the termination of the offering contemplated hereby, and as long as any of the Securities are outstanding, the Company will file and make, and pay all fees applicable thereto, such statements and reports and renewals of registration as are or may be required by the laws, rules or regulations of such jurisdictions to maintain and continue in full force and effect the registration, qualification or exemption for secondary market transactions in the Shares in the various jurisdictions in which the Shares were originally registered, qualified or exempted for offer or sale.
(c) The Company will furnish to the Representative and its counsel, without charge, two copies (one of which shall be manually signed) of the Registration Statement as originally filed on Form S-1 and of any amendments (including post-effective amendments thereto), including financial statements and schedules, if any, and all consents, certificates and exhibits (including those incorporated therein by reference to the extent not previously furnished to the Representative), heretofore or hereafter made, signed by or on behalf of its officers whose signatures are required thereon and a majority of its board of directors, and will furnish to the Representative, without charge, for transmittal to each of the other Underwriters a copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, if any, but without exhibits.
(d) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with under the Commission as promptly as practicable Securities Act. Upon such effectiveness, if the Company and the Representative have determined not to proceed pursuant to Rule 430A under the Securities Act, the Company will not at timely file a Prospectus pursuant to, and in conformity with, Rule 424(b), if required, and if the Company and the Representative have determined to proceed pursuant to Rule 430A under the Securities Act, the Company will timely file a Prospectus pursuant to, and in conformity with, Rules 424(b) and 430A under the Securities Act.
(e) The Company will give the Representative and its counsel advance notice of its intention to file any timeamendment to the Registration Statement or any amendment or supplement to the Prospectus, whether before or after the effective date of the Registration Statement, and will not file any such amendment to or supplement unless the Registration Statement Company shall have first delivered copies of such amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which Representative and its counsel and the Representative and its counsel shall have given consent to the filing of such amendment or supplement, which consent shall not previously have been advised and furnished with a copy, be unreasonably withheld. Any such amendment or to which the Representative supplement shall have objected within two (2) business days after its receipt thereof or which is not in compliance comply with the Securities Act, the Exchange Act or the Rules and Regulations.
(bf) As soon as From and after the Company is advised or obtains knowledge thereofEffective Date, the Company will advise deliver to each of the Representative and confirm the notice in writingUnderwriters, (i) when the Registration Statementwithout charge, as amended, becomes effective with the Commission and, if the provisions many copies 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 post-effective amendment to the Registration Statement becomes 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or thereto as the institution of proceedings for that purpose, (iii) Representative may reasonably request. The Company consents to the use of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement Prospectus or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to thereto by the Representativeseveral Underwriters and by all dealers to whom the Shares may be sold, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters both in connection with the offering or sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required law to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretoconnection therewith. If at any during such period of time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, occur which in the opinion judgment of counsel for the Company or Underwriters' Counsel, counsel to the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to Representative should be stated therein or necessary set forth in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Actlaw, the Company will notify the Representative promptly and forthwith prepare and duly file with the Commission an appropriate supplement or amendment or supplement in accordance with Section 10 thereto, and will deliver to each of the ActUnderwriters, each without charge, such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters number of copies of such amendment or supplement as soon as available and in such quantities thereof as the Underwriters Representative may reasonably request.
(g) During The Company will promptly pay all expenses in connection with (1) the preparation, printing, filing, distribution and mailing (including, without limitation, express delivery service) of the Registration Statement, each Preliminary Prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (if any); (2) the issuance and delivery of the Shares; (3) the fees and expenses of legal counsel and independent accountants for the Company relating to, among other things, opinions of counsel, audits, review of unaudited financial statements and cold comfort review; (4) the fees and expenses of any registrar, transfer agent for the Shares; (5) the printing, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Agreement Among Underwriters, the Selected Dealer Agreement, and the Underwriters’ Questionnaire; (6) furnishing such copies of the Registration Statement, the Prospectus and any Preliminary Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom the Shares may be sold; (7) any fees with respect to filings required to be made by the Underwriters with FINRA; and (8) the expenses of tombstone advertisements, due diligence meetings and lucite cubes. The Company will also pay all expenses in connection with the Company’s application to list the Shares on the NASDAQ Capital Market (“NASDAQ”). The registration and other fees and expenses incurred by the Representative’s counsel related to compliance with the Securities Act, state blue sky laws and FINRA shall be paid by the Company; provided, however that such expenses shall not exceed $48,000. In addition, the Company hereby agrees to pay to the Representative a non-accountable expense allowance set forth in Section 3 above.
(h) On the Closing Date, the Company shall sell to the Representative (or its designees), Representative’s Warrants described in Section 3 above.
(i) If (I) this Agreement (a) shall not become effective, or (b) if the Representative terminates this Agreement, in either case due to a breach or non-fulfillment of obligations of Section 7 hereof by the Company, which shall include a breach of the representations and warranties of the Company contained in this Agreement, or for the failure of the Company to perform any of the covenants contained in this Agreement or (II) if the Company elects to terminate this Agreement pursuant to Section 8 hereof, the Company will reimburse the several Underwriters for their out-of-pocket expenses (including fees and expenses of counsel to the Representative) reasonably incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Shares limited to an aggregate amount of fifty thousand dollars ($50,000) in total.
(j) Until ninety (90) days after the Effective Date, without the prior written consent of the Representative, the Company will not offer, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company, except as provided for and as contemplated by this Agreement.
(k) On or prior to the Closing Date, the Company shall obtain from each of ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ his enforceable written agreement, in form and substance satisfactory to counsel to the Representative, that for a period of three one year after the Closing Date (3or any longer period required by any jurisdiction in which the offer and sale of the Shares is to be registered or qualified), he will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company (including without limitation any shares of Common Stock), owned by him as of the Closing Date without the prior written consent of the Company (the “Offering Restrictions”) and the Company agrees not to release such persons from the restrictions without prior written consent of the Representative. In addition, the Company will instruct the transfer agent accordingly and the certificates representing these securities will bear a legend to the foregoing effect.
(l) The Company has reserved and shall continue to reserve and keep available the maximum number of shares of its authorized but unissued Common Stock and other securities for issuance upon exercise of the Representative’s Warrants.
(m) For a period of five (5) years after the date hereofof this Agreement, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representativeshall:
(i) every press release retain ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ LLP or another nationally recognized firm of independent public accountants, as its auditors, and every material news item or article at its own expense, shall cause such independent certified public accountant to review (but not audit) the Company’s financial statements for each of interest the first three (3) fiscal quarters of each fiscal year prior to the announcement of quarterly financial community information, the filing of the Company’s Form 10-Q quarterly reports and the mailing of quarterly financial information to its stockholders, provided this shall not require the inclusion of such a review report in respect the Company’s quarterly filings.
(ii) cause the Company’s Board of Directors to meet not less frequently than quarterly, upon proper notice, and cause an agenda and minutes of the preceding meeting to be distributed to directors prior to each such meeting;
(iii) distribute to its security holders, within 120 days after the end of each fiscal year, an annual report (containing certified financial statements) prepared in accordance with, and satisfying the substantive disclosure requirements of Rule 14a-3(b) of Regulation 14A promulgated by the Commission under the Securities Exchange Act of 1934, as amended; and
(iv) appoint a transfer agent for the Common Stock, acceptable to the Representative.
(n) For a period of five (5) years after the date of this Agreement, the Company shall furnish each of the Underwriters without charge, the following:
(i) within ninety (90) days after the end of each fiscal year, financial statements certified by the independent certified public accountants referred to in Section 4(m)(i) above, including a balance sheet, statement of operations, statement of stockholders’ equity and statement of cash flows, in each case for the Company and its then existing subsidiaries (if any), with, supporting schedules, prepared in accordance with generally accepted accounting principles, as at the end of such fiscal year and for the twelve (12) months then ended, accompanied by a copy of the certificate or report thereon of such independent certified public accountants;
(ii) (x) for so long as the Company is a reporting company under any of Sections 12(b), 12(g) or 15(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the “Exchange Act”), promptly after filing with the Commission, copies of all reports and proxy soliciting material which the Company is required to file under the Exchange Act, or (y) at such times as the Company is not a reporting company under the aforesaid provisions of the Exchange Act, as soon as practicable after the end of each of the first three fiscal quarters of each fiscal year, financial statements of the Company, including a balance sheet, statement of operations, statement of stockholders’ equity and statement of cash flows as at the end of, or its affairs for each such fiscal quarter and the comparable period of the preceding year, which was released or prepared by or on behalf statements need not be audited.
(iii) as soon as practicable after they have first been distributed to stockholders of the Company; and
(ii) any additional information , copies of a public nature concerning the Company (each annual and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.interim
Appears in 2 contracts
Sources: Underwriting Agreement (Spheric Technologies, Inc.), Underwriting Agreement (Spheric Technologies, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto thereto, if not effective at the time of execution of this Agreement, to become effective with the Commission as promptly as practicable thereafter 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 Securities Act or the Exchange Act before termination of during any time that a prospectus relating to the offering of Underwritten Securities is required to be delivered under the Preferred Shares by the Underwriters Securities Act of which the Representative and Representative's counsel shall not previously have been advised and furnished with a copycopy a reasonable period of time prior to its proposed filing, or to which the Representative shall have reasonably objected within two (2) business days after its receipt thereof or which is not in compliance with the Securities Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writingwriting or electronically, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Securities Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement relating to the offering of the Underwritten Securities becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, ; (iii) of the issuance commencement by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Underwritten Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, threat of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If The Company will use its best efforts to prevent the issuance of any stop or suspension order and if the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly as possible, the lifting or withdrawal of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representativeapplicable, pursuant to Rule 424(b)(4)) not later than on or before the Commission's close of business on date that it is required to be filed under the earlier of (i) Securities Act and the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementRegulations.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faithshall, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify arrange for the qualification of the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be reasonably necessary to complete the distribution, distribution contemplated hereby and shall make such applications, file such documents and furnish such information as may reasonably be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation corporation, subject itself to taxation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(fe) During the time when a prospectus Prospectus is required to be delivered under the ActSecurities Act with respect to the Underwritten Securities, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Underwritten Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus Prospectus relating to the Underwritten Securities or the Underwriter's Preferred Shares is required to be delivered under the Securities Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' CounselRepresentative's counsel, the Prospectus, as then amended or supplemented, includes would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the ActSecurities Act or the Rules and Regulations with respect to the offering of the Underwritten Securities, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Actthat corrects such statement or omission or effects such compliance, each such amendment or supplement to be satisfactory to Underwriters' Representative's Counsel, and the Company will furnish to to, or at the Underwriters direction of, the Representative copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Representative may request.
(f) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the first day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is also the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Securities Act and Rule 158(a) of the Regulations.
(g) During a the three-year period of three (3) years after commencing on the date hereof, the Company will furnish to its shareholders (i) as soon as practicable, but in any event not later than the earlier of (A) 120 days after the last day of each annual fiscal period, or (B) the date required for filing of the same with the Securities and Exchange Commission under the Regulations its audited statements of operations, stockholders' equity and cash flows for such period and its audited balance sheet as of the end of such period as to which the Company's independent accountants have rendered an opinion; and (ii) make available to its shareholders, as soon as practicable, but in any event not later than 45 days after each annual report (including financial of the first three quarterly fiscal periods, its unaudited statements audited by independent public accountants)of operations, and each report on Form 10-KSB cash flows, for such period and its unaudited balance sheet as of the end of such period (or 10such earlier dates required by the Rules and Regulations. In addition, during the three-Kyear period commencing on the date hereof, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and Company will deliver to the Representative:
(i1) concurrently with making such quarterly reports available to its shareholders, summary financial information of the Company;
(2) concurrently with furnishing such annual reports to its shareholders, a balance sheet of the Company at the end of the preceding fiscal year, together with statements of operations, shareholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of the Company's independent certified public accountants;
(3) as soon as they are available, copies of all reports (financial or other) made available by the Company to any person who is not an employee of, or consultant to, the Company;
(4) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD and/or any securities exchange;
(5) within a reasonable amount of time prior to its release, every press release and every material news item or article of interest to the financial community in with respect of to the Company, Company or its affairs which was released or is being prepared by or on behalf of the Company; provided, however, that the Representative will keep such information confidential and will not use or disclose any such information prior to its release and will comply with all applicable securities law requirements in respect thereto, including Regulation F-D; and
(ii6) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses which the Representative may reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the The foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are required to be consolidated under GAAP, and will be accompanied by similar financial statements for any subsidiary are that is not so consolidated.
(h) The Company will maintain a transfer agent for the Common Stock reasonably satisfactory to the Representative.
(i) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (one of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may reasonably request.
(j) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of the Lock-up Agreements duly executed and delivered by the Lock-Up Parties.
(k) Neither the Company, nor any of its officers, directors, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(l) The Company shall apply the net proceeds from the sale of the Shares substantially in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(m) The Company shall, until at least December 31, 2007, timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will materially comply as to form and substance with the applicable requirements under the Securities Act, the Exchange Act and the Rules and Regulations.
(n) The Company shall furnish to the Representative as early as practicable prior to each of (1) the date hereof, (2) the Closing Date and (3) each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) that have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Section 6(j) hereof. The foregoing information shall be kept confidential by the Representative.
(o) The Company shall use its reasonable best efforts to maintain the Nasdaq SmallCap listing of the Common Stock.
(p) For a period of two years from the Closing Date, the Company shall cause to be furnished to the Representative directly from the Company's transfer agent, at the Company's sole expense, consolidated transfer sheets relating to the Common Stock. Such consolidated transfer sheets shall be furnished to the Representative daily on a daily basis for 60 days following the Closing Date, and on a weekly basis beginning on the 61st day following the Closing Date.
(q) Within 30 days after the effective date of the Registration Statement the Company shall, take all necessary and appropriate actions to be included in Standard and Poor's Corporation descriptions and endeavor to continue such inclusion for a period of not less than five years from the effective date of the Registration Statement.
(r) Except as contemplated by the Warrant Agreement, without the consent of the Representative, the Company hereby agrees that it will not for a period of one (1) year from the effective date of the Registration Statement, adopt or propose to adopt any employee, officer, director, consultant or similar compensation plan or arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right at an exercise price that is less than the fair market value on the date of grant or sale; (ii) the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options or warrants issued by the Company to exceed 1,000,000 shares; (iii) the payment for such securities with any form of consideration other than cash; or (iv) the existence of stock appreciation rights, phantom options or similar arrangements.
(s) Until the completion of the distribution of the Underwritten Securities, the Company shall not without the prior written consent of the Representative and Representative's Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the Offering, other than releases that have been approved by Representative's counsel in advance thereof.
(t) For a period equal to the lesser of (i) seven years from the date hereof and (ii) the resale to the public of the Warrant Shares, the Company will not take any action or actions that would prevent or disqualify the use by the Company of Form S-1 or Form S-3 (or other appropriate forms) for the registration of the Warrant Shares under the Securities Act.
(u) For a period of two years following the Closing Date, the Company will permit a designee of the Representative to observe meetings of the Company's board of directors and shall provide to such designee, at the same time provided to the members of the Company's Board of Directors, all notices, minutes, documents, information and other materials generally provided to the members of the Company's Board of Directors; provided, however, that such designee of the Representative will agree in writing to be bound by such duties of confidentiality, care and loyalty as if he were a member of the Company's Board of Directors. The Company will reimburse the designee directly for reasonable out-of-pocket expenses incurred in attending board meetings, including, but not limited to, expenses for food, transportation and lodging, and shall pay that designee the same cash attendance fee (if any) that the Company pays to its outside directors. During such two-year period, the Company will hold no less than one formal, in person meetings of its board of directors each calendar quarter.
(v) Prior to the 90th day after the Closing Date, the Company will provide the Representative and its designees with five sets of bound volumes of the transaction documents relating to the Offering, in form and substance reasonably satisfactory to the Representative and its counsel.
(w) Prior to the Closing Date, the Company will deliver to the Representative a reasonably detailed budget covering the period from the Closing
Appears in 2 contracts
Sources: Underwriting Agreement (Tarpon Industries, Inc.), Underwriting Agreement (Tarpon Industries, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representative have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representative have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representative have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representative promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representative promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representative promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representative a copy, reasonable time prior to the proposed filing thereof or to which the Representative shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representative, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.necessary to
Appears in 2 contracts
Sources: Underwriting Agreement (Homecom Communications Inc), Underwriting Agreement (Homecom Communications Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) the Registration Statement time and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed, (iii) of the receipt of any comments of the Commission relating to the Registration Statement, or any request by the Commission for amendments or supplements to the Registration Statement or for additional information, (iv) 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 the 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 any of the Securities Notes for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) of any request by within the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification period beginning at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as thereafter from time to time in force, so far for such period as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Securities Act to be delivered in connection with sales by any Underwriter or a dealer, of any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company or Underwriters' Counselany subsidiaries thereof, taken as a whole, or of any event that comes to the Prospectus, attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the ActSecurities 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 notify make every reasonable effort to obtain the Representative promptly and prepare withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 the provisions of Rule 430B and in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and any such Issuer Free Writing Prospectus in the manner and within the time period required by Rule 433. As used in this Agreement, “subsidiaries” shall mean all of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, wholly-owned and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available partially-owned direct and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect indirect subsidiaries of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 2 contracts
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.), Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and you promptly and, if requested by you, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by 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 made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 for 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. If the Company elects, with the consent of the Representatives, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, 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.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use 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 Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission an appropriate supplement or amendment thereto and, in the case of any such amendment, use its best efforts to cause such amendment to become effective as promptly as possible, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In each such amendment or supplement to be satisfactory to Underwriters' Counseljurisdiction in which the Shares shall have been qualified as above provided, and the Company will furnish to make and file such statements and reports in each year as are or may be required by the Underwriters copies laws of such amendment or supplement as soon as available and jurisdiction. If the qualification of the Shares is suspended in such quantities as any jurisdiction, the Underwriters may requestCompany shall so advise you promptly in writing.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou such information concerning the Company, excluding non-public information, as soon you may reasonably request, provided that the Company shall have no obligation to furnish any documents available to the public on EDGAR. During the Prospectus Delivery Period, the Company will file al▇ ▇▇▇uments required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption "Use of Proceeds" in the Prospectus.
(j) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
(k) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing except to the Underwriters pursuant to this Agreement and except for grants of options pursuant to the Company's stock option, stock bonus or other stock plans or arrangements in effect as practicable, each annual report of the date hereof and described in the Prospectus and except for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans.
(including financial statements audited by independent public accountants), and each report on Form 10-KSB (l) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(o) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(p) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(q) With a view to minimizing the dilution to future earnings per share that might be experienced by the holders of Common Stock (including holders of the Shares), the Company will call for redemption and redeem, or will otherwise purchase, retire, or exchange for non-equity-linked securities, all or as large a portion as possible of its outstanding 6% convertible subordinated debentures if and when, as soon as practicable after the Closing Date, it shall determine, in its reasonable business judgment (being mindful of other needs for cash and credit), that it has cash and credit available for that purpose.
Appears in 2 contracts
Sources: Underwriting Agreement (Noble International LTD), Underwriting Agreement (Noble International LTD)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document (if required to be stated filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will furnish file all documents required to be filed with the Underwriters copies Commission pursuant to Sections 13, 14 and 15 of such amendment or supplement as soon as available the Exchange Act in the manner and in such quantities as within the Underwriters may requesttime periods required by the Exchange Act.
(gj) During The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of three (3) years one year after the date hereof.
(k) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) During the period ending three years from the date hereof, upon receipt of a written request from you, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment theretoavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any report national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on Form 10the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-QSB of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10-Qenter into any transaction or device that is designed to, as or could be expected to, result in the case may bedisposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options, rights or other instruments pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof), (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 such 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, (3) file or cause to be filed a registration statement, including any amendment thereto and each current report on Form 8-Kamendments, including any amendment thereto, and will promptly deliver a copy of each such report with respect to the Representative and will deliver to the Representative:
(i) every press release and every material news item registration of any shares of Common Stock or article of interest to the financial community in respect securities convertible, exercisable or exchangeable into Common Stock or any other securities of the CompanyCompany or (4) publicly disclose the intention to do any of the foregoing, or its affairs which was released or prepared by or in each case without the prior written consent of the Representative on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (Underwriters, and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts cause each officer and director of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waive such extension in writing.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are traded on NASDAQ.
(s) The Company shall engage and maintain, at its subsidiary are consolidatedexpense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Carolina Financial Corp), Underwriting Agreement (Carolina Financial Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its reasonable best efforts to cause the Registration Statement and any amendments thereto thereto, if not effective at the time of execution of this Agreement, to become effective with the Commission 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 Securities Act or the Exchange Act before termination of during any time that a prospectus relating to the offering of securities is required to be delivered under the Preferred Shares by the Underwriters Securities Act of which the Representative and Representative's Counsel shall not previously have been advised and furnished with a copycopy a reasonable period of time prior to its proposed filing, or to which the Representative shall have reasonably objected within two (2) business days after its receipt thereof or which is not in compliance with the Securities Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Securities Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If The Company will use its reasonable best efforts to prevent the issuance of any stop or suspension order and if the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting or withdrawal of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representativeapplicable, pursuant to Rule 424(b)(4)) not later than on or before the Commission's close of business on date that it is required to be filed under the earlier of (i) Securities Act and the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementRegulations.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faithshall, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify arrange for the qualification of the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be reasonably necessary to complete the distribution, distribution contemplated hereby and shall make such applications, file such documents and furnish such information as may reasonably be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation corporation, subject itself to taxation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(fe) During the time when a prospectus Prospectus is required to be delivered under the Securities Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as now and hereafter amended amended, and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Securities Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Representative's Counsel, the Prospectus, as then amended or supplemented, includes would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the ActSecurities Act or the Rules and Regulations, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the ActSecurities Act that corrects such statement or omission or effects such compliance, each such amendment or supplement to be satisfactory to Underwriters' Representative's Counsel, and the Company will furnish to to, or at the Underwriters direction of, the Representative copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Representative may request.
(f) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the first day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is also the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Securities Act and Rule 158(a) of the Regulations, which statement need not be audited unless required by the Securities Act.
(g) During a the three-year period of three (3) years after commencing on the date hereof, the Company will furnish to its stockholders, stockholders (i) as soon as practicable, but in any event not later than 120 days after the last day of each annual report fiscal period, its audited statements of operations, stockholders' equity and cash flows for such period and its audited balance sheet as of the end of such period as to which the Company's independent accountants have rendered an opinion; and (including financial ii) as soon as practicable, but in any event not later than 60 days after each of the first three quarterly fiscal periods, its unaudited statements audited by independent public accountants)of operations, stockholders' equity and each report cash flows, for such period and its unaudited balance sheet as of the end of such period. In addition, during the three-year period commencing on Form 10-KSB (or 10-Kthe date hereof, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and Company will deliver to the Representative:
(i1) concurrently with furnishing such quarterly reports to its stockholders, summary financial information of the Company, together with a letter from the Company's President or Chief Executive Officer, for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(2) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company 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 the Company's independent certified public accountants;
(3) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(4) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(5) within a reasonable amount of time prior to its release, every press release and every material news item or article of interest to the financial community in with respect of to the Company, Company or its affairs which was released or prepared by or on behalf of the Company; provided, however, that the Representative will not use or disclose any such information prior to its release and will comply with all applicable securities law requirements in respect thereto, including Regulation F-D; and
(ii6) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses which the Representative may reasonably request. During such three (3)-year three-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are required to be consolidated under GAAP, and will be accompanied by similar financial statements for any significant subsidiary are that is not so consolidated.
(h) The Company will maintain a transfer agent for the Common Stock.
(i) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may reasonably request.
(j) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of the Lock-up Agreements duly executed and delivered by the Company's officers, directors, stockholders and persons holding warrants, options, rights or other securities of the Company.
(k) Neither the Company, nor any of its officers, directors, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(l) The Company shall apply the net proceeds from the sale of the Shares in substantially the manner, and subject to the conditions, set forth under "Use of proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(m) The Company shall, until December 31, 2006, timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will materially comply as to form and substance with the applicable requirements under the Securities Act, the Exchange Act and the Rules and Regulations.
(n) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) that have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Section 6(j) hereof. The foregoing information shall be kept confidential by the Representative.
(o) The Company shall use its reasonable best efforts to maintain the American Stock Exchange listing of the Common Stock to the extent outstanding.
(p) For a period of two years from the Closing Date, the Company shall cause to be furnished to the Representative directly from the Company's transfer agent, at the Company's sole expense, consolidated transfer sheets relating to the Common Stock. Such consolidated transfer sheets shall be furnished to the Representative daily for 60 days following the Closing Date, and weekly beginning on the 61st day following the Closing Date.
(q) Within 30 days from the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation descriptions and endeavor to continue such inclusion for a period of not less than five years from the effective date of the Registration Statement.
(r) Except as contemplated by the Warrant Agreement, without the consent of the Representative, the Company hereby agrees that it will not for a period of six (6) months from the effective date of the Registration Statement, adopt or propose to adopt any employee, officer, director, consultant or similar compensation plan or arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right at an exercise price that is less than the fair market value on the date of grant or sale except for up to 600,000 shares of Common Stock issuable upon exercise of stock options granted pursuant to the Company's 2000 Stock Option Plan as of the effective date of the Registration Statement which have an exercise price below the initial public offering price (provided, that the holders of such options shall be subject to the terms of the Lock-Up Agreements); (ii) the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options or warrants issued by the Company to exceed 1,718,243 shares; (iii) the payment for such securities with any form of consideration other than cash; or (iv) the existence of stock appreciation rights, phantom options or similar arrangements.
(s) Until the completion of the distribution of the Underwritten Securities, if any, the Company shall not without the prior written consent of the Representative and Representative's Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the Offering, other than releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations that have been approved by Representative's Counsel.
(t) For a period equal to the lesser of (i) seven years from the date hereof and (ii) the resale to the public of the Warrant Shares, the Company will not take any action or actions that would prevent or disqualify the use by the Company of Form S-1, Form SB-2 or Form S-3 (or other appropriate forms) for the registration under the Securities Act of the Warrant Shares.
(u) For a period of two years following the Closing Date, the Company will permit a designee of the Representative to observe meetings of the Company's board of directors and shall provide to such designee, at the same time provided to the members of the Company's board of directors, all notices, minutes, documents, information and other materials generally provided to the members of the Company's board of directors; provided, however, that such designee of the Representative will agree in writing to be bound by such duties of confidentiality, care and loyalty as if he were a member of the Company's board of directors. The Company will reimburse the designee directly for reasonable out-of-pocket expenses incurred in attending board meetings, including, but not limited to, expenses for food, transportation and lodging, and shall pay that designee the same cash attendance fee (if any) that the Company pays to its outside directors. During such two-year period, the Company will hold no less than two formal, in person meetings of its board of
Appears in 1 contract
Sources: Underwriting Agreement (Access Integrated Technologies Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will use its best commercially reasonable efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission be maintained as promptly as practicable effective, and will not at any time, whether before or after advise you promptly and will confirm such advice in writing (i) if and when the Registration Statement is no longer effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the 1933 Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the 1933 Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information or with respect to any Incorporated Documents included in the Registration Statement, the Preliminary Prospectus or the Prospectus, (iv) 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 the 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 any of the Offered Securities for offering or sale in any jurisdiction or the initiation of any Proceeding for such purposes or a Proceeding under Section 8A of the initiation1933 Act, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) within the period of time referred to in Section 4(e) below, of any request by change in the condition (financial or other), business, management, properties, net worth, results of operations, cash flows or prospects of the Company and its subsidiaries or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement, the Preliminary Prospectus or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Preliminary Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the 1933 Act or any other Law. If at any time the Commission for or other securities official of any amendment jurisdiction 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. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Commission Rule 424(b) of the 1933 Act before the close of business on the first business day immediately following the date hereof. The Company will timely file with the Commission, subject to the terms and conditions hereof regarding the Company's use of an Issuer Free Writing Prospectus, any Issuer Free Writing Prospectus as required by Commission Rule 433 under the ▇▇▇▇ ▇▇▇.
(b) The Company will furnish to you and to each Underwriter, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment or supplement to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the 1933 Act and with the securities or Blue Sky Laws of the jurisdictions in which the Offered Securities 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.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is (iior but for the exemption in Rule 172 would be) required by the fifteenth business day after 1933 Act to be delivered in connection with sales by any Underwriter or a dealer (the effective date "Prospectus Delivery Period"), and for so long a period as you may request for the distribution of the Registration Statement.
(d) The Offered Securities, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use Offered Securities are offered by the several Underwriters and by all dealers to whom Offered Securities may be sold, both in connection with the offering and sale of the Offered Securities which differs from the corresponding prospectus on file at the Commission, and for such period of time thereafter as the case may Prospectus is required by the 1933 Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the time later of (i) the completion of the distribution of the Offered Securities pursuant to the offering contemplated by the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed (ii) the filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior respect to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the ActOffered Securities, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Act1933 Act or any other Law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its commercially reasonable efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto or supplement in accordance with Section 10 of where to the Act, each such amendment or supplement extent permitted by the Rules and Regulations to be satisfactory to Underwriters' Counselfile a Free Writing Prospectus, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Offered Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky Laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Offered Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Offered Securities, as contemplated by this Agreement and the Prospectus, in such quantities as any jurisdiction where it is not now so subject. In the Underwriters may requestevent that the qualification of the Offered Securities in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Commission Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, within 90 days after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act.
(h) During a the Prospectus Delivery Period and for not less than one year after the date hereof, the Company will file and furnish all documents required to be filed or furnished with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act and Commission Regulations, in the manner and within the time periods required by the Exchange Act, Commission Regulations, the requirements of the Nasdaq and the NASD or any securities exchange where any Company securities are listed.
(i) During the period of beginning on the date hereof and ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the NASD or Nasdaq or any securities exchange other than such reports and proxy statements not available on ▇▇▇▇▇ and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) The Company will reimburse you and the other Underwriters for all out-of-pocket expenses (including financial statements audited by independent public accountants)travel expenses and the fees and charges of counsel for the Underwriters, but excluding wages, salaries, and other overhead costs paid by you) reasonably incurred by you in connection herewith and the transactions contemplated hereby not to exceed $50,000.
(k) The Company will apply the net proceeds from the sale of the Offered Securities to be sold by it hereunder in accordance with the statements under the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A under the 1933 Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) and Rule 430A under the 1933 Act.
(m) For a period of 45 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the 1933 Act, without your prior written consent, the Company will not and will cause each report on Form 10-KSB of its subsidiaries to not (i) directly or indirectly, issue, announce the intention to sell, pledge, offer or contract to sell or otherwise dispose of or transfer any shares of Company preferred stock or any rights to purchase Company preferred stock, or file any registration statement under the 1933 Act with respect to any of the foregoing, (or 10-Kenter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) or (ii) enter into any swap, forward contract, or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company securities whether any such swap or transaction is to be settled by delivery of preferred stock, in cash or otherwise, or publicly announce an intention to effect any such transaction except to the Underwriters pursuant to this Agreement.
(n) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will cause to be paid the following: (i) the fees, a copy disbursements and expenses of any report on Form 10-QSB (or 10-Qthe Company's counsel and accountants in connection with the registration of the Offered Securities under the 1933 Act and all other expenses in connection with the preparation and filing of all copies of the Registration Statement, as the case may be)Preliminary Prospectus, the Prospectus and the Incorporated Documents, including any amendment thereto amendments and supplements to any of the foregoing documents; (ii) the preparation, printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Prospectus, each current report on Form 8-KPreliminary Prospectus, the Blue Sky memoranda, the Master Agreement Among Underwriters, this Agreement, the Selected Dealers Agreement and all amendments or supplements to any of them as may be reasonably requested for use in connection with the offering and sale of the Offered Securities; (iii) all expenses in connection with the qualification of the Offered Securities for offering and sale under state and foreign securities Laws or Blue Sky Laws, including reasonable attorneys' fees and charges of the Underwriters' counsel in connection therewith; (iv) the filing fees incident to securing any amendment required review by the NASD of the fairness of the terms of the sale of the Offered Securities and the reasonable fees and charges of the Underwriters' counsel relating thereto; (v) the fees and expenses associated with including the Offered Securities for trading on Nasdaq; (vi) the cost of preparing and delivering certificates for the Offered Securities; (vii) the costs and charges of any transfer agent or registrar or book-entry depository; (viii) the cost of the tax stamps, if any, in connection with the issuance and delivery of the Offered Securities to the respective Underwriters; (ix) all other fees, costs and expenses referred to in Item 13 of the Registration Statement; and (x) the transportation, lodging, graphics and other expenses incurred by the Company and Underwriters in preparing for and participating in the "roadshow" for the offering contemplated hereby.
(o) [Reserved]
(p) The Company will file promptly with the SEC all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, and will promptly deliver a copy provide copies thereof to each of each such report the Underwriters as provided in Section 4(i). In addition, from the date hereof through the last Additional Closing Date, at the same time the Company makes any announcement to the Representative and will deliver general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed with the Commission pursuant to the Representative:
(i) every press release and every material news item Exchange Act or article of interest with Nasdaq, the Company will furnish the information contained or to be contained in such announcement to each Underwriter and, subject to the financial community in respect provisions of the Companysubsections (a), or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiaryb) or its businesses which the Representative may request. During such three (3)-year periodc) of this Section, will, if the Company has an active subsidiarydeems it necessary or appropriate, cause the Prospectus and any Free Writing Prospectus to be amended or supplemented to reflect the information contained in such announcement. From the date hereof through the last Additional Closing Date, the foregoing financial statements Company also will be on a consolidated basis furnish each Underwriter with copies of all press releases or announcements to the extent that general public concerning its results of operations or financial condition.
(q) From the accounts date hereof through the last Additional Closing Date, as soon as the Company has notice, written or otherwise, of any downgrading or withdrawal of the rating of any debt, asset-backed or other securities issued or guaranteed by, or the financial strength of, the Company or any of its subsidiaries or any proposal to downgrade or withdraw the rating of any debt, asset-backed or other securities or the financial strength of the Company or any of its subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g)(2) under the ▇▇▇▇ ▇▇▇) or any pending public announcement that any such organization has under surveillance or review its rating of any debt, asset-backed or other securities or the financial strength of the Company or its subsidiaries (other than an announcement with positive implications of a possible upgrading, and its subsidiary are consolidated.no implication of a possible downgrading or withdrawal of such rating), the Company will immediately notify each Underwriter of such d
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees the --------------------------------------- Selling Stockholder covenant and agree with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall not have objected within two previously approved in writing (2such approval not to be unreasonably withheld or delayed) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements, but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, -------- however, that the expense of the preparation and delivery of any prospectus ------- required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate, provided that such jurisdictions are within the United States, Guam or Puerto Rico, and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company -------- ------- shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission cooperation of the Representatives use its best efforts to obtain the withdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited.
(h) The Company will use its best efforts to list the Stock on the Nasdaq National Market.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its first six quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an appropriate amendment option to purchase or supplement otherwise dispose of any shares of Common Stock or securities convertible into, derivative of or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with Section 10 the Rules and Regulations) during the 180 days after the date of this Agreement (except with prior written consent of Cowen acting alone or each of the ActRepresentatives acting jointly), each such amendment other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus or supplement pursuant to be satisfactory the Company's stock option plans described in the Prospectus.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus which description complies in all material respects with the requirements of Item 504 of Regulation S-K.
(m) The Company will supply you with copies of all correspondence to Underwriters' Counseland from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act and the Exchange Act.
(n) Prior to the Closing Dates, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(o) Prior to the First Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, its financial condition, results of operation, business, prospects, assets or liabilities, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the Closing Date, the Company will use its best efforts to provide to you copies of each press release or other public communication with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
(p) During the period of five (5) years hereafter, the Company will furnish to the Underwriters copies Representatives, and upon request of such amendment or supplement the Representatives, to each of the Underwriters: (i) as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years practicable after the date hereofend of each fiscal year, copies of the Annual Report of the Company will furnish to its containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders, ' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicablepracticable after the filing thereof, copies of each annual report (including financial statements audited by independent public accountants)proxy statement, and each report Annual Report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report Quarterly Report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report Current Report on Form 8-KK or other report filed by the Company with the Commission, including or the NASD or any amendment theretosecurities exchange; and (iii) as soon as available, and will promptly deliver a copy copies of each such any report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect communication of the CompanyCompany mailed generally to holders of its Common Stock and (iv) from time to time, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative as you may reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Underwriters shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriters) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or ▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinger & ▇▇▇▇▇▇▇▇▇, P.C. ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriters may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is are required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) five years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeUnderwriters:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Underwriters may reasonably request. .
(vii) During such three (3)-year five-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Underwriters or on Underwriters' order, without charge, at such place as the Underwriters may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Underwriters with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of twelve (12) months from the effective date of the Registration Statement, the officers and directors of the Company, holders of all shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, agree that it or he or she will not directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Underwriters and the Company (collectively, the "Lock-up Agreements"). On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. During the twelve (12) month period commencing on the effective date of the Registration Statement, and except as contemplated by this Agreement, the Company will not, without the prior written consent of the Underwriters, (i) sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except (a) pursuant to warrants issued to a bank outstanding as of the date hereof, (b) up to an aggregate of 700,000 shares of Common Stock and options therefor which may be granted after the date hereof or which are currently outstanding, provided, however, that such options granted after the date hereof shall have an exercise price which is at least equal to the closing price of the Common Stock on the Nasdaq SmallCap Market on the date of grant and (c) in connection with acquisitions approved by the Board of Directors of the Company and as contemplated by the Prospectus or (ii) file any registration statement for the offer or sale by the Company or any other person or entity securities issued or to be issued by the Company or any present or future subsidiaries.
(l) Neither the Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in its letter to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on Nasdaq and for a period of seven (7) years from the date hereof, use its best efforts to maintain the Nasdaq quotation of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Underwriters at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities, and (iii) a "Blue Sky Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) For a period of five (5) years from the Closing Date, the Company shall, at the Company's sole expense, (i) promptly provide the Underwriter, upon any and all requests of the Underwriter, with a "Blue Sky Trading Survey" for secondary sales of the Company's securities, prepared by counsel to the Company, and (ii) take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the "blue sky" laws of those jurisdictions, provided that such jurisdictions do not require the Company to qualify as a foreign corporation.
(s) As soon as practicable, (i) but in no event more than 20 business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than 60 days after the effective date of the Registration Statement, take all reasonable actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than one year.
(t) The Company hereby agrees that it will not for a period of twelve (12) months from the effective date of the Registration Statement, (i) adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is used, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by 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 made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you and your counsel shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you or your counsel have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, 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.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use 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 Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such quantities as Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of 5 years after the Underwriters may requestdate hereof.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), 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 after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) During the period of three (3) ending five years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to its shareholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq National Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, in which case the provisions of this paragraph shall not apply) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably 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 in accordance in all material respects with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
(m) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and each report on Form 10-KSB except for the issuance, sale or grant of options or shares of Common Stock pursuant to the Company's stock option, stock purchase or dividend reinvestment plans in effect as of the date hereof ("Permitted Plans") and described in the Prospectus and except for issuances of shares of Common Stock upon the exercise of options under such plans.
(n) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as practicable, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary Subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(p) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 to become effective and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which Issuer Free Writing Prospectus to you and counsel for the Company proposes for use by the Underwriters in connection Underwriters, and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(j) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as required for the distribution of the Shares, which shall not exceed a period of one year after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act.
(l) During the period ending three years from the date hereof, each such amendment or supplement to be satisfactory to Underwriters' Counselif not otherwise available on ▇▇▇▇▇, and the Company will promptly furnish to you and, upon your request, to each of the Underwriters copies of such amendment or supplement other Underwriters, (i) as soon as available available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, FINRA, the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and in (ii) from time to time such quantities other information concerning the Company as the Underwriters you may reasonably request.
(gm) During If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Sections 11, 12 or 13 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of three the Prospectus (the “Lock-Up Period”), the Company agrees not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could reasonably be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock or securities convertible into or exchangeable for Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans that either exist on the date hereof or do not reserve for issuance thereunder more than 5% of the Company’s outstanding common stock on the Additional Closing Date or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options, rights or warrants pursuant to option plans existing on the date hereof), (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 such 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, (3) years after file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock (other than registration statements demanded by holders of registration rights that are outstanding on the date hereof) or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each executive officer and director of the Company to furnish to the Representative, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waives such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (United Insurance Holdings Corp.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the Registration Statement time and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under the Act or the Exchange Act before termination and of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company, the Operating Partnership or the subsidiaries, taken as a whole, or of any amendment event that comes to the attention of the Company or the Operating Partnership that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, upon request, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Underwriters and obtain your consent, which shall not be unreasonably withheld or delayed, prior to filing any amendment or supplement to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus with the Commission.
(e) The Company will not make any offer relating to the Class A Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to Rule 424(b)(1) (the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if applicable for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and if consented to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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 Representativeseveral Underwriters and by dealers, pursuant prior to Rule 424(b)(4)the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) not later than the Commission's close of business on the earlier of (i) the second business day following As soon as is practicable after the execution and delivery of this Agreement and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after “Prospectus Delivery Period”), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus and each Issuer Free Writing Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and each Issuer Free Writing Prospectus (including and of any revised prospectus 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 Company proposes for use 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 Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, each such amendment other than those arising out of the offering or supplement sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. If the Class A Common Stock fails to be satisfactory be, or ceases to Underwriters' Counselbe, and listed on a national securities exchange, the Company will furnish use its best efforts to qualify or register its Class A Common Stock for sale in non-issuer transactions under (or obtain exemptions from the Underwriters copies application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such amendment or supplement as soon as available Blue Sky laws and will continue such qualifications, registrations and exemptions in such quantities as the Underwriters may request.
(g) During effect for a period of three (3) years one year after the date hereof.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158) covering the twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(k) During the Prospectus Delivery Period, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment theretoavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the New York Stock Exchange (“NYSE”) or any report national securities exchange; provided, the Company will be deemed to have furnished such information to the extent it is filed on Form 10▇▇▇▇▇.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to Section 12 or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-QSB of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise dispose of, directly or indirectly (or 10-Qenter into any transaction or device that is designed to, as or could be expected to, result in the case may be)disposition by any person at any time in the future of) any shares of Class A Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock, (ii) enter into any swap or other transaction that transfers to another, in whole or in part, any of the economic consequences of ownership of such shares of Class A Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Class A Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement with the Commission, including any amendment thereto amendments, with respect to the registration of any shares of Class A Common Stock or securities convertible, exercisable or exchangeable into Class A Common Stock or any other securities of the Company or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Class A Common Stock or any securities convertible (in accordance with their terms, at the option of the holder or otherwise) into or exercisable or exchangeable for Class A Common Stock issued upon the exercise of options granted under the Company’s, Amended and each current report Restated 2005 Long Term Incentive Plan (the “Amended 2005 LTIP”), that are outstanding on Form 8the date of this Agreement, (C) the performance-K, including any amendment theretobased restricted shares of Class A Common Stock to be granted to, and will promptly deliver a copy the shares of each such report Class A Common Stock issuable upon the vesting and conversion of the IPO restricted stock units issued to, the Company’s named executive officers, as described in the Registration Statement, (D) the restricted shares of Class A Common Stock to the Representative be granted to non-executive employees and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect directors of the Company, as described in the Registration Statement, (E) the shares of Class A Common Stock issuable upon the vesting and conversion of the restricted stock units to be granted to non-executive employees of the Company and the shares of Class A Common Stock issuable upon the vesting and conversion of such restricted stock units, as described in the Registration Statement, (F) any shares of Class A Common Stock or its affairs securities convertible or exchangeable into Class A Common Stock issued in connection with the acquisition by the Company of real property or real property companies, in the aggregate not to exceed 10% of the number of shares of Class A Common Stock outstanding which was released shall be subject to a customary lock-up agreement substantially consistent with the terms set forth in Exhibit A hereto, or prepared by (G) the conversion of shares of the Company’s Class B-1 Common Stock, Class B-2 Common Stock or Class B-3 Common Stock into shares of Class A Common Stock in connection with the Recapitalization in accordance with the terms described in the Registration Statement. Notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (y) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Company; andUnderwriters, waives such extension in writing.
(iio) The Company will comply with all provisions of any additional information undertakings contained in the Registration Statement.
(p) 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 or manipulation of the price of the shares of Class A Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will timely file with the NYSE all documents and notices required by the NYSE of companies that have or will issue securities that are traded on the NYSE.
(r) The Company shall engage and maintain, at its expense, a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year periodtransfer agent and, if necessary under the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts jurisdiction of the Company and its subsidiary are consolidated.its
Appears in 1 contract
Sources: Underwriting Agreement (CatchMark Timber Trust, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purposesuch purposes, (iv) of the receipt of any comments from the Commission; and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to by in the judgment of the Company or the Representative, pursuant to Rule 424(b)(4)) not later than be required by the Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(j) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as required for the distribution of the Shares.
(k) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to 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 request.
(gl) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request; except, in each case, if available on ▇▇▇▇▇ or the Company’s website.
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement required to be fulfilled by the Company, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith; provided that such reimbursement is limited to $200,000 in the aggregate.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB the Company will not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options, rights or warrants pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof), (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer and director of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waive such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees the --------------------------------------- Selling Stockholder covenant and agree with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall not have objected within two previously approved in writing (2such approval not to be unreasonably withheld or delayed) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements, but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation -------- ------- and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate, provided that such jurisdictions are within the United States, Guam or Puerto Rico, and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company -------- ------- shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission cooperation of the Representatives use its best efforts to obtain the withdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited.
(h) The Company will use its best efforts to list the Stock, subject to official notice of issuance, on the Nasdaq National Market.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its first six quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an appropriate amendment option to purchase or supplement otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with Section 10 the Rules and Regulations) during the 180 days following the date on which the price of the Act, each such amendment or supplement Common Stock to be satisfactory purchased by the Underwriters is set (except with prior written consent of each of the Representatives), other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus or pursuant to Underwriters' Counselthe Company's stock option plans.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus which description complies in all material respects with the requirements of Item 504 of Regulation S-K.
(m) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act and the Exchange Act.
(n) Prior to the Closing Dates, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(o) Prior to the First Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the Closing Date, the Company will use its best efforts to provide to you copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
(p) During the period of five (5) years hereafter, the Company will furnish to the Underwriters copies Representatives, and upon request of such amendment or supplement the Representatives, to each of the Underwriters: (i) as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years practicable after the date hereofend of each fiscal year, copies of the Annual Report of the Company will furnish to its stockholderscontaining the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholder's equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (ii) as soon as practicablepracticable after the filing thereof, copies of each annual report (including financial statements audited by independent public accountants)proxy statement, and each report Annual Report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report Quarterly Report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report Current Report on Form 8-KK or other report filed by the Company with the Commission, including or the NASD or any amendment theretosecurities exchange; and (iii) as soon as available, and will promptly deliver a copy copies of each such any report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect communication of the CompanyCompany mailed generally to holders of its Common Stock and (iv) from time to time, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative as you may reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) of the effective time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every commercially reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with electronic copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the second business day immediately following the date hereof.
(b) If requested by you, the Company will furnish to you, without charge, two copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant through the time when a prospectus relating to Rule 424(b)(1) (or, if applicable and if consented to the Shares is required by the RepresentativeAct to be delivered in connection with sales of the Shares any amendment or supplement to the Registration Statement or the Prospectus that may, pursuant to Rule 424(b)(4)) not later than in the judgment of the Company or the Representatives be required by the Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission through the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required by the Act to be delivered under in connection with sales of the Shares.
(e) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act, ; and if at any event time after the date hereof any events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Promptly following the execution and delivery of this Agreement, the Company will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, electronic copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its commercially reasonable best efforts to cause to become effective as promptly as possible an appropriate amendment supplement or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver furnish to each Underwriter who has previously requested Prospectuses, without charge, a copy reasonable number of each such report to the Representative and will deliver to the Representative:copies thereof.
(i) every press release During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and every material news item or article of interest to the financial community in respect 15 of the Company, Exchange Act in the manner and within the time periods required by the Exchange Act.
(j) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or its affairs which was released or prepared by or on behalf qualification of the CompanyShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; andprovided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its commercially reasonable best efforts to qualify or register its Class A Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as required for the distribution of the Shares, but in no event beyond one year after the date hereof.
(iik) any additional information The Company will make generally available to its security holders a consolidated earning statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a public nature concerning twelve-month period commencing after the Company (effective date of the Registration Statement and any future subsidiary) or its businesses which ending not later than 15 months thereafter, as soon as practicable after the Representative may request. During end of such three (3)-year period, if which consolidated earning statement shall satisfy the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts provisions of the Company and its subsidiary are consolidated.Section 11(a)
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company will notify the Representative promptly by telephone and (if requested by the Representative) will confirm such advice in writing, (1) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) if Rule 430A under the Securities Act is used, or the Prospectus is otherwise required to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act, (3) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (4) of the issuance by the Commission of any stop order ( “Stop Order” ) suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Preliminary Prospectus, the Prospectus, the Registration Statement or any amendment or supplement thereto, or refusing to permit the effectiveness of the Registration Statement, or the initiation of any proceedings for any of those purposes, (5) of the happening of any event during the period mentioned in paragraph (f) below which in the reasonable judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading, and (6) of the receipt of any comments from the Commission or the Blue Sky or securities authorities of any jurisdiction regarding the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto. The Company will use its best efforts to prevent the issuance of any Stop Order by the Commission or any notification from the Blue Sky or securities authorities of any jurisdiction suspending the qualification or registration of the Shares or shares of Common Stock issuable upon exercise of the Warrants (the Shares together with the Representative’s Warrant Shares, the “Securities”) for sale in such jurisdictions, and if at any time the Commission shall issue any Stop Order, or if the Blue Sky or securities authorities of any jurisdiction shall issue notification suspending the qualification or registration of the Securities, the Company will make every reasonable effort to obtain the withdrawal of such Stop Order or notification at the earliest possible moment. The Company will promptly advise the Representative of its receipt of any notification with respect to the suspension of the qualification or registration of the Securities for offer or sale in any jurisdiction or the initiation or threatening of any action or proceeding for such purpose. The Company will use its best efforts to effectuate the listing of its shares on the NASDAQ.
(b) Prior to any public offering of the Shares by the Underwriters, the Company will endeavor in good faith, in cooperation with the Representative and its counsel, to register or qualify the Securities for offer or sale, as may be required under the Blue Sky or securities laws, rules or regulations of such jurisdictions as the Representative may request; provided that in no event shall the Company be obligated to register or qualify to do business as a foreign corporation in any jurisdiction where it is not now so registered or qualified or to take any action which would subject it to general service of process, or to taxation as a foreign corporation doing business, in any jurisdiction where it is not now so subject. The Company will pay all fees and expenses relating to the registration or qualification of the Securities under such Blue Sky or securities laws of such jurisdictions as the Representative may designate (including legal fees of counsel for the registration or qualification of the Securities, and in all cases, all disbursements and expenses incurred by such counsel in connection therewith). After registration, qualification or exemption of the Securities for offer and sale, in such jurisdictions, and for as long as any offering pursuant to this Agreement continues, the Company, at the Representative’s request, will file and make such statements or reports, and pay the fees applicable thereto, at such times as are or may be required by the laws, rules or regulations of such jurisdictions in order to maintain and continue in full force and effect the registration, qualification or exemption for offer or sale of the Securities, in such jurisdictions. After the termination of the offering contemplated hereby, and as long as any of the Securities are outstanding, the Company will file and make, and pay all fees applicable thereto, such statements and reports and renewals of registration as are or may be required by the laws, rules or regulations of such jurisdictions to maintain and continue in full force and effect the registration, qualification or exemption for secondary market transactions in the Shares in the various jurisdictions in which the Shares were originally registered, qualified or exempted for offer or sale.
(c) The Company will furnish to the Representative and its counsel, without charge, two copies (one of which shall be manually signed) of the Registration Statement as originally filed on Form S-1 and of any amendments (including post-effective amendments thereto), including financial statements and schedules, if any, and all consents, certificates and exhibits (including those incorporated therein by reference to the extent not previously furnished to the Representative), heretofore or hereafter made, signed by or on behalf of its officers whose signatures are required thereon and a majority of its board of directors, and will furnish to the Representative, without charge, for transmittal to each of the other Underwriters a copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, if any, but without exhibits.
(d) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with under the Commission as promptly as practicable Securities Act. Upon such effectiveness, if the Company and the Representative have determined not to proceed pursuant to Rule 430A under the Securities Act, the Company will not at timely file a Prospectus pursuant to, and in conformity with, Rule 424(b), if required, and if the Company and the Representative have determined to proceed pursuant to Rule 430A under the Securities Act, the Company will timely file a Prospectus pursuant to, and in conformity with, Rules 424(b) and 430A under the Securities Act.
(e) The Company will give the Representative and its counsel advance notice of its intention to file any timeamendment to the Registration Statement or any amendment or supplement to the Prospectus, whether before or after the effective date of the Registration Statement, and will not file any such amendment to or supplement unless the Registration Statement Company shall have first delivered copies of such amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which Representative and its counsel and the Representative and its counsel shall have given consent to the filing of such amendment or supplement, which consent shall not previously have been advised and furnished with a copy, be unreasonably withheld. Any such amendment or to which the Representative supplement shall have objected within two (2) business days after its receipt thereof or which is not in compliance comply with the Securities Act, the Exchange Act or the Rules and Regulations.
(bf) As soon as From and after the Company is advised or obtains knowledge thereofEffective Date, the Company will advise deliver to each of the Representative and confirm the notice in writingUnderwriters, (i) when the Registration Statementwithout charge, as amended, becomes effective with the Commission and, if the provisions many copies 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 post-effective amendment to the Registration Statement becomes 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or thereto as the institution of proceedings for that purpose, (iii) Representative may reasonably request. The Company consents to the use of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement Prospectus or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to thereto by the Representativeseveral Underwriters and by all dealers to whom the Shares may be sold, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters both in connection with the offering or sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required law to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretoconnection therewith. If at any during such period of time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, occur which in the opinion judgment of counsel for the Company or Underwriters' Counsel, counsel to the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to Representative should be stated therein or necessary set forth in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Actlaw, the Company will notify the Representative promptly and forthwith prepare and duly file with the Commission an appropriate supplement or amendment or supplement in accordance with Section 10 thereto, and will deliver to each of the ActUnderwriters, each without charge, such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters number of copies of such amendment or supplement as soon as available and in such quantities thereof as the Underwriters Representative may reasonably request.
(g) During The Company will promptly pay all expenses in connection with (1) the preparation, printing, filing, distribution and mailing (including, without limitation, express delivery service) of the Registration Statement, each Preliminary Prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (if any); (2) the issuance and delivery of the Shares; (3) the fees and expenses of legal counsel and independent accountants for the Company relating to, among other things, opinions of counsel, audits, review of unaudited financial statements and cold comfort review; (4) the fees and expenses of any registrar, transfer agent for the Shares; (5) the printing, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Agreement Among Underwriters, the Selected Dealer Agreement, and the Underwriters’ Questionnaire; (6) furnishing such copies of the Registration Statement, the Prospectus and any Preliminary Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom the Shares may be sold; (7) any fees with respect to filings required to be made by the Underwriters with FINRA; and (8) the expenses of tombstone advertisements, due diligence meetings and lucite cubes. The Company will also pay all expenses in connection with the Company’s application to list the Shares on the NASDAQ Capital Market (“ NASDAQ ”). The registration and other fees and expenses incurred by the Representative’s counsel related to compliance with the Securities Act, state blue sky laws and FINRA shall be paid by the Company; provided, however that such expenses shall not exceed $20,000. In addition, the Company hereby agrees to pay to the Representative a non-accountable expense allowance set forth in Section 3 above.
(h) On the Closing Date, the Company shall sell to the Representative (or its designees), Representative’s Warrants described in Section 3 above.
(i) If (I) this Agreement (a) shall not become effective, or (b) if the Representative terminates this Agreement, in either case due to a breach or non-fulfillment of obligations of Section 7 hereof by the Company, which shall include a breach of the representations and warranties of the Company contained in this Agreement, or for the failure of the Company to perform any of the covenants contained in this Agreement or (II) if the Company elects to terminate this Agreement pursuant to Section 8 hereof, the Company will reimburse the several Underwriters for their out-of-pocket expenses (including fees and expenses of counsel to the Representative) reasonably incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Shares limited to an aggregate amount of fifty thousand dollars ($50,000) in total.
(j) Until ninety (90) days after the Effective Date, without the prior written consent of the Representative, the Company will not offer, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company, except as provided for and as contemplated by this Agreement.
(k) On or prior to the Closing Date, the Company shall obtain from each of ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ his enforceable written agreement, in form and substance satisfactory to counsel to the Representative, that for a period of three one year after the Closing Date (3or any longer period required by any jurisdiction in which the offer and sale of the Shares is to be registered or qualified), he will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company (including without limitation any shares of Common Stock), owned by him as of the Closing Date without the prior written consent of the Company (the “Offering Restrictions” ) and the Company agrees not to release such persons from the restrictions without prior written consent of the Representative. In addition, the Company will instruct the transfer agent accordingly and the certificates representing these securities will bear a legend to the foregoing effect.
(l) The Company has reserved and shall continue to reserve and keep available the maximum number of shares of its authorized but unissued Common Stock and other securities for issuance upon exercise of the Representative’s Warrants.
(m) For a period of five (5) years after the date hereofof this Agreement, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representativeshall:
(i) every press release retain ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ LLP or another nationally recognized firm of independent public accountants, as its auditors, and every material news item or article at its own expense, shall cause such independent certified public accountant to review (but not audit) the Company’s financial statements for each of interest the first three (3) fiscal quarters of each fiscal year prior to the announcement of quarterly financial community information, the filing of the Company’s Form 10-Q quarterly reports and the mailing of quarterly financial information to its stockholders, provided this shall not require the inclusion of such a review report in respect the Company’s quarterly filings.
(ii) cause the Company’s Board of Directors to meet not less frequently than quarterly, upon proper notice, and cause an agenda and minutes of the preceding meeting to be distributed to directors prior to each such meeting;
(iii) distribute to its security holders, within 120 days after the end of each fiscal year, an annual report (containing certified financial statements) prepared in accordance with, and satisfying the substantive disclosure requirements of Rule 14a-3(b) of Regulation 14A promulgated by the Commission under the Securities Exchange Act of 1934, as amended; and
(iv) appoint a transfer agent for the Common Stock, acceptable to the Representative.
(n) For a period of five (5) years after the date of this Agreement, the Company shall furnish each of the Underwriters without charge, the following:
(i) within ninety (90) days after the end of each fiscal year, financial statements certified by the independent certified public accountants referred to in Section 4(m)(i) above, including a balance sheet, statement of operations, statement of stockholders’ equity and statement of cash flows, in each case for the Company and its then existing subsidiaries (if any), with, supporting schedules, prepared in accordance with generally accepted accounting principles, as at the end of such fiscal year and for the twelve (12) months then ended, accompanied by a copy of the certificate or report thereon of such independent certified public accountants;
(ii) (x) for so long as the Company is a reporting company under any of Sections 12(b), 12(g) or 15(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the “Exchange Act” ), promptly after filing with the Commission, copies of all reports and proxy soliciting material which the Company is required to file under the Exchange Act, or (y) at such times as the Company is not a reporting company under the aforesaid provisions of the Exchange Act, as soon as practicable after the end of each of the first three fiscal quarters of each fiscal year, financial statements of the Company, including a balance sheet, statement of operations, statement of stockholders’ equity and statement of cash flows as at the end of, or its affairs for each such fiscal quarter and the comparable period of the preceding year, which was released or prepared by or on behalf statements need not be audited.
(iii) as soon as practicable after they have first been distributed to stockholders of the Company; and
(ii) any additional information , copies of a public nature concerning the Company (each annual and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.i
Appears in 1 contract
Sources: Underwriting Agreement (Spheric Technologies, Inc.)
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 497 of the Securities Act Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Securities Act Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for such purposes, and will use its best efforts to prevent the issuance of any such stop order, and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Acts. The Company will advise the Representative and confirm Representatives promptly of receipt by the notice in writing, (i) when Company or any representative or attorney of the Registration Statement, as amended, becomes effective with Company of any other communication from the Commission 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 post-effective amendment relating to the Registration Statement becomes 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the CommissionCompany, as the case may be at if received during the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus Prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Securities Act, or (ii) the Registration Statement, any Preliminary Prospectus, the Prospectus or the transactions contemplated by this Agreement.
(b) The Company will promptly prepare and file with the Commission any amendments or supplements to the Registration Statement or the Prospectus which in the judgment of the Company or in the reasonable opinion of the Representatives may be necessary to enable the several Underwriters to continue the distribution of the Shares and will use its best efforts to cause the same to become effective as promptly as possible.
(c) If at any time after the effective date of the Registration Statement when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred relating to or affecting the Company or any of the Subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the ActActs, the Company will promptly notify the Representative promptly Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and file in case any Underwriter is required to deliver a prospectus relating to the Shares nine months or more after the effective date of the Registration Statement in connection with the Commission initial sale of any Shares which such Underwriter purchased from the Company pursuant to this Agreement, the Company upon the request of the Representatives but at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, copies of the Registration Statement as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Shares is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request.
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than 15 months after the effective date of the Registration Statement, an appropriate amendment or supplement earnings statement which will be in accordance reasonable detail (but which need not be audited) and which will comply with Section 10 11(a) of the Securities Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and covering a period of at least 12 months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will furnish to its shareholders annual reports containing financial statements audited by independent certified public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) five years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders and will deliver to the Representative:
Representatives, (i) every press release and every material news item as soon as they are available, copies of any other reports (financial or article of interest other) which the Company shall publish or otherwise make available to the financial community in respect of the Companyits shareholders as such, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional reports and financial statements furnished to or filed with the Commission or any national securities exchange or the Nasdaq National Market and (iii) from time to time such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which as the Representative Representatives may reasonably request. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Securities Act Rules and Regulations.
(g) The Company will use its best efforts to cause the Shares to be duly appropriate for quotation on the Nasdaq National Market prior to the First Closing Date.
(h) The Company will maintain a transfer agent and registrar for its Common Stock.
(i) The Company will not, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇, offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Securities Act Rules and Regulations) during the 180 days following the date of the Prospectus first filed pursuant to Rule 497(b), (c) or (h), other than (i) the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of stock options which are outstanding on the First Closing Date or described in the Prospectus and (ii) the Company's issuance of stock options which are described in the Prospectus.
(j) The Company will apply the net proceeds from the sale of the Shares as set forth in the description under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will supply the Representatives with copies of all written correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Shares under the Securities Act and the Nasdaq National Market.
(l) Prior to the Closing Dates, the Company will furnish to the Representatives, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(m) Prior to the Closing Dates, unless required under the Acts or the Rules and Regulations, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Shares, without the prior written consent of the Representatives, which shall not be unreasonably withheld. For a period of 12 months following the Closing Date, the Company will use its best efforts to provide to the Representatives copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company [at least 24 hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.]
(n) During the period of five years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters, (i) as soon as practicable after the end of each fiscal year, copies of the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent certified public accountants, (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, or the Nasdaq National Market or any national securities exchange, (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock and (iv) all public reports and all reports and financial statements furnished by the Company to the Commission pursuant to the Investment Company Act and the Investment Company Act Rules and Regulations thereunder.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by 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 made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 for shall issue any amendment to stop order suspending the effectiveness of the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any timeStatement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement, the Time of Sale Information or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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 Securities 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Securities, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities 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 at any time prior to the later of (i) the completion of the distribution of the Securities pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Securities under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will use its reasonable best efforts to cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securities, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Securities in any jurisdiction is suspended, the Company shall so advise you promptly in writing. If required, the Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Securities.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to 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 request.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (including financial “FINRA”) or the Nasdaq Global Market (“Nasdaq”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request, provided that the Company’s obligation pursuant to this Section 5(k) shall be satisfied to the extent the Company files or furnishes any such documents or report to ▇▇▇▇▇.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to pay or reimburse you and the other Underwriters for all reasonable out-of-pocket costs and expenses (including, without limitation, the fees and expenses of the Underwriters’ outside attorneys) incurred by the Underwriters in connection herewith, not to exceed $100,000.
(m) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), including, without limitation, any sales pursuant to the Distribution Agreement, dated as of September 7, 2018, by and between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., or any similar arrangement, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit B hereto (the “Lock-KUp Agreements”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretoat the reasonable request of the Underwriters, a copy the Company will furnish to you, as promptly as possible following your request, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Securities.
(r) The Company will timely file with Nasdaq all documents and notices required by the Nasdaq of companies that have or will issue securities that are consolidatedtraded on the Nasdaq.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. 5.1. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause (i) keep the Registration Statement and any amendments thereto to become effective with and (ii) prevent the Commission as issuance of any order described in Section 5.1(b)(v) hereof;
(b) The Company will advise you promptly as practicable and, if requested by you, will confirm such advice in writing:
(i) of the time and will not at any time, whether before or after the effective date of any filing of any amendment or supplement to the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file and any document Issuer Free Writing Prospectus;
(ii) if Rule 430A under the Act or the Exchange Act before termination is employed, of the offering time and date of filing of the Preferred Shares Prospectus pursuant to Rule 424(b) under the Act;
(iii) of the time and date of filing of any Rule 462(b) Registration Statement;
(iv) of (x) the receipt of any comments of the Commission, (y) any request by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, Commission for amendments or supplements to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with any Preliminary Prospectus or the Prospectus or (z) any request by the Commission 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 post-effective amendment to the Registration Statement becomes effective, for additional information;
(iiv) of (y) the issuance by the Commission or any other government or regulatory authority of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement Statement, suspending the qualification of the Shares for offering or sale in any order jurisdiction, or preventing or suspending the use of the Preliminary Registration Statement, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus or (z) the Prospectusinitiation or, or any amendment or supplement thereto, or to the institution of proceedings for that purpose, (iii) knowledge of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiationCompany, or the threatening, of any proceeding for that purpose, the purpose of any order referred to under item (ivy) or initiated pursuant to Section 8A of the receipt Act; and
(vi) within the Prospectus Delivery Period (as defined below), of any comments from change in the Commission; and Company’s condition (v) financial or other), business, prospects, properties, net worth or results of operations, or of any request by the Commission for any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 amendment or supplement to the Prospectus or for additional information. other law;
(c) If at any time the Commission or the state securities commission any other government or regulatory authority of shall issue any state shall enter a stop order or suspend such qualification at any timeas referred to under Section 5.1(b)(v), the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such order.
(c) The Company shall file order at the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.earliest possible time;
(d) The Company will give provide the Representative notice Underwriters with copies of its intention the form of the Prospectus, in such number as the Underwriters may reasonably request, and file the Prospectus with the Commission in accordance with, and within the time period specified by, Rule 424(b) and Rule 430(A) under the Act before the close of business on the first business day immediately following the date hereof;
(e) The Company will furnish to file or prepare any amendment to you, without charge, (i) two (2) signed duplicate originals of the Registration Statement and any amendment thereto, including financial statements and all exhibits thereto, and (including ii) such number of conformed copies of the Registration Statement and any post-effective amendmentamendment thereto, as you may reasonably request;
(f) or The Company will promptly prepare and file with the Commission any amendment or supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that may be (including any revised prospectus which i) in the judgment of the Company proposes for use or the Representative, be required (y) to comply with the Act or any other law or (z) in relation to Section 1.1(a) hereof or (ii) requested by the Underwriters in connection with Commission;
(g) Before (i) using, authorizing, approving, referring to, distributing or filing any Issuer Free Writing Prospectus, (ii) filing (x) the offering of the Securities which differs from the corresponding prospectus on file at the CommissionProspectus, as the case may be at the time (y) any Rule 462(b) Registration Statement or (z) any amendment or supplement to the Registration Statement becomes effectiveor the Prospectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b(iii) of the Rules and Regulations), and will furnish the Representative with copies of distributing any such amendment or supplement no later than two (2) business days after its receipt thereof prior to the Time of Sale Information or the Prospectus, the Company will furnish to the Representative and counsel to the Underwriters a copy of the such proposed filing or document for review and will not use, as authorize, refer to, distribute or file any such document to the case may be,extent that (A) the Representative reasonably objects thereto in a timely manner and (B) it is not in compliance with the Act or any other law;
(eh) The Company shall endeavor will not make any offer relating to the Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent;
(i) The Company will, pursuant to reasonable procedures developed in good faith, in cooperation retain any Issuer Free Writing Prospectus that is not filed with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process Commission in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered accordance with Rule 433 under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will (x) notify the Representative, (y) prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance and (z) upon your request, file such amended or supplemented Issuer Free Writing Prospectus with the Commission if such Issuer Free Writing Prospectus was required to be stated filed under Rule 433 of the Act;
(j) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with the offering and sale of the Shares by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request;
(k) The Company consents to the use of each Preliminary Prospectus, the Prospectus and the Time of Sale Information (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 and/or sold by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering and sale of the Shares and for the Prospectus Delivery Period. If at any time prior to the 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 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5.1(b) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof;
(l) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its reasonable best efforts to qualify or register its Common Stock for offering and/or sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for as long as may be necessary to complete the distribution of the Shares;
(m) The Company will make generally available to its securityholders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve (12)-month period commencing after the effective date of the Registration Statement or any Rule 462(b) Registration Statement, as the case may be, and ending not later than fifteen (15) months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to 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 request.;
(gn) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the Underwriters, (i) as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment theretoavailable, a copy of each proxy statement, quarterly or annual report, financial statement and any other report on Form 10-QSB or communication (financial or 10-Qother) delivered to shareholders or filed with the Commission, FINRA or Nasdaq or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request; provided, the case may be), including any amendment thereto Company will be deemed to have furnished such reports and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report financial statements to the Representative Representatives to the extent they are filed on ▇▇▇▇▇;
(o) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Information and the Prospectus;
(p) The Company will deliver cause each officer, director and shareholder of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Closing Date, duly executed lock-up letter(s) which shall be substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”);
(q) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly:
(i) every press release offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into, or exercisable or exchangeable for, any shares of Common Stock (other than (A) the registration, offer and every material news item sale of the Shares contemplated hereunder, (B) any Common Stock, bonus or article other options or rights granted or exercised pursuant to any Stock Plans (the “Stock Options”), provided, that the grantees or recipients thereof agree, pursuant to a Lock-Up Agreement, not to sell, offer, dispose of interest or otherwise transfer any such equity interests or Common Stock during the Lock-Up Period without the prior written consent of the Representative or (C) Common Stock issued pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into, or exercisable or exchangeable for Common Stock (other than Stock Options or Common Stock issued pursuant to currently outstanding options, warrants or rights), whether any such transaction is to be settled by delivery of any shares of Common Stock or other securities, in cash or otherwise;
(ii) 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 any shares of Common Stock, whether any such transaction is to be settled by delivery of any shares of Common Stock or other securities, in cash or otherwise;
(iii) file, confidentially submit or cause to be confidentially submitted or filed a registration statement, including any amendments thereto, with respect to the financial community registration of any shares of Common Stock or securities convertible into, exercisable or exchangeable for, any shares of Common Stock or any other securities of the Company (other than a registration statement on Form S-8 with respect to any Stock Plans); or
(iv) publicly disclose the intention to take any of the actions described under Sections 5.1(q)(i), 5.1(q)(ii) or 5.1(q)(iii), in respect each case without the prior written consent of the Representative;
(r) The Company will comply with all provisions of any undertakings contained in the Registration Statement;
(s) Other than excepted activity pursuant to Regulation M under the Exchange Act, the Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause, result in, or constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares;
(t) The Company will timely file with Nasdaq all documents and notices required by Nasdaq of companies that have or will issue securities that are traded on Nasdaq;
(u) The Company will engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock;
(v) None of the Company, the Manager or its affairs which was released any of their Subsidiaries shall invest or prepared by or on behalf otherwise use the proceeds received from the sale of the CompanyShares in such manner as it would qualify as an “investment company” or an “affiliated person” of, or “promoter”, “principal investor” or “principal underwriter” for, an “investment company” within the meaning of the U.S. Investment Company Act; and
(iiw) any additional information of The Company will use its reasonable best efforts to meet the requirements for qualification and taxation as a public nature concerning REIT under the Code for its taxable year ending December 31, 2024, and the Company (and any future subsidiary) or intends to use its businesses which reasonable best efforts to continue to qualify for taxation as a REIT under the Representative may request. During such three (3)-year periodCode in subsequent taxable years, if unless the Company has an active subsidiary, Company’s Board of Directors determines in good faith that it is no longer in the foregoing financial statements will be on a consolidated basis to the extent that the accounts best interests of the Company and its subsidiary are consolidatedshareholders to so qualify or to be so qualified.
Appears in 1 contract
Sources: Underwriting Agreement (Sunrise Realty Trust, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and you promptly and, if requested by you, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions time and date 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 filing of any post-effective amendment to the Registration Statement becomes effectiveor any amendment or supplement to any Preliminary Prospectus or the Prospectus, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b), (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purposesuch purposes or pursuant to Section 8A under the Securities Act or if any proceeding for such purpose or pursuant to Section 8A under the Securities Act shall, (iv) to the knowledge of the receipt of any comments from Company, be threatened or contemplated by the Commission; and , (v) when any supplement to the Prospectus, any Issuer Free Writing Prospectus, any Testing-the-Waters Communication that is a written communication within the meaning of any request by the Commission for Rule 405 (each, a “Written Testing-the-Waters Communication”) or any amendment to the Prospectus has been filed or distributed, and (vi) within the time period referred to in Section 5(h) hereof, of any change in the Company’s and its subsidiaries’, taken as a whole, condition (financial or other), business, properties, net worth, results of operations or business prospects, or of any event that comes to the attention of the Company, in each case that makes any statement made in the Registration Statement Statement, the Time of Sale Information, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will file with the Commission the Prospectus in accordance with Rule 424(b) before the close of business on the second business day immediately following the date hereof and will provide the Underwriter, without charge, copies of the form of such Prospectus, in such number as the Underwriter may reasonably request.
(b) The Company will furnish to you, without charge, four signed duplicate copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Underwriter, be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement, to the Time of Sale Information or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection Underwriter and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Shares that would constitute an Issuer Free Writing Prospectus or a Written Testing-the-Waters Communication without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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 Underwriter and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or a dealer, and for so long a period as you may request for the distribution of the Shares, the Company will deliver to the Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 Underwriter 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 the Underwriter or any dealer. If the Time of Sale Information is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriter is required to be stated set forth in or incorporated by reference into the Time of Sale Information (as then amended or supplemented) or should be set forth or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Time of Sale Information to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) and 5(d) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to the Underwriter, without charge, a reasonable number of copies thereof. If at any time prior to the 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 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriter is required to be set forth in or incorporated by reference into the Prospectus (as then amended or supplemented) or should be set forth or incorporated by reference therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Section 5(a) and prepare and 5(d) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to the Underwriters Underwriter, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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.
(j) The Company will make generally available to its security holders a consolidated earnings statement covering a twelve-month period commencing with the first fiscal quarter after the “effective date” (as defined in Rule 158 promulgated under the Act) of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and the provisions of Rule 158 promulgated under the Act, it being understood and agreed that such earnings statement shall be deemed to have been made available by the Company if the Company is in compliance with its reporting obligations pursuant to the Exchange Act, if such compliance satisfies the conditions of Rule 158, and in if such quantities as the Underwriters may requestearnings statement is made available on ▇▇▇▇▇.
(gk) During For a period commencing on the date hereof and ending on the 90th day after the date of three the Prospectus, the Company will not, directly or indirectly, (i) offer for sale, sell, pledge, lend or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the transfer or disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (ii) 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 such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. The restrictions contained in the preceding paragraph shall not apply to (1) the filing by the Company of a registration statement in connection with the sale of the Shares to be sold hereunder, (2) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant, settlement of restricted stock or the conversion of a security outstanding on the date hereof pursuant to stock plans or otherwise and disclosed in the Time of Sale Information, (3) years after the issuance by the Company of shares, restricted stock, or options to purchase shares of Common Stock pursuant to the Company’s equity plans as in effect on the date hereof and disclosed in the Time of Sale Information, (4) the filing by the Company of a registration statement on Form S-8 or a successor form thereto pertaining to the Company’s employee benefit plans described in the Time of Sale Information and (5) beginning on the day that is 61 days from the date hereof, the issuance of Common Stock directly to a seller or sellers of a business or assets as part of the purchase price in connection with acquisitions thereof by the Company, provided that the aggregate number of shares of Common Stock that the Company may offer pursuant to this clause (5) shall not exceed 5% of the total number of shares of Common Stock issued and outstanding as of the date hereof and provided, further, that the Company shall cause all such recipients of shares of Common Stock pursuant to this clause (5) to enter into a “lock-up” agreement substantially in the form of Exhibit A hereto (each, a “Lock-Up Agreement”) pursuant to which such recipient will agree to be subject to all of the restrictions set forth therein for the remainder of the lock-up period set forth in the above paragraph; provided, further, that in the case of clauses (2) and (3) of this paragraph, the Company shall cause all officers and directors that are recipients of shares of Common Stock or any security convertible into or exercisable for shares of Common Stock to enter into a Lock-Up Agreement. For purposes of this Agreement insofar as it relates to Lock-Up Agreements, “officer” has the meaning ascribed thereto in Rule 16a-1 promulgated under the Exchange Act. The Company will further cause each of its officers and directors to furnish to the Underwriter a Lock-Up Agreement prior to the date hereof. Any transfers, sales or other actions taken by any such officer or director that is not in violation of his or her Lock-Up Agreement shall not be deemed to be an action of the Company that is prohibited by the first paragraph of this clause (k) solely by virtue of his or her status as an officer or director.
(l) Prior to the Closing Date or the applicable Additional Closing Date, as the case may be, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus; provided, however, the Company will be deemed to have furnished such financial statements or information to the extent it is made publicly available on ▇▇▇▇▇.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(o) The Company will timely file with the NASDAQ Global Select Market (“NASDAQ”) all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(p) The Company has engaged and shall maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5.1(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to by in the reasonable judgment of the Company or the Representative, pursuant to Rule 424(b)(4)) not later than be required by the Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as which consent shall not be unreasonably withheld, delayed or conditioned.
(e) The Company will not make any offer relating to the case may Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be at unreasonably withheld, delayed or conditioned.
(f) The Company will retain in accordance with the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may reasonably request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the reasonable judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to 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 request.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the NASDAQ Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request. For purposes of this paragraph, any document filed electronically with the Commission and publicly available shall be deemed to be furnished to the Underwriters.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, other than clauses (iv) or (v)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer, director and shareholder of the Company set forth on Schedule IV hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waive such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock will be listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (First Guaranty Bancshares, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable (such Registration Statement to be in form and substance satisfactory to the Representative and Underwriters' Counsel) 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 Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the by notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, purpose (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeRepresentative and Underwriters' Counsel) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1424 (b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)424 (b)(47) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Underwriters' Counsel, shall reasonably object.
(e) The Company shall endeavor in good faithtake all action, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities Units for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification. It is agreed that Underwriters' Counsel (or its designees) shall perform all such required Blue Sky legal services.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the ActAct and the Rules and Regulations, the Company will notify the Representative 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 satisfactory to 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 request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, Company or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses which the Representative may reasonably request. During such three (3)-year seven-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent, counsel, accounting firm, financial printer and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Units, Common Stock and Public Warrants all of whom shall be reasonably acceptable to the Representative. Such Transfer Agent shall, for a period of five years following the Closing Date, deliver to the Representative the monthly securities position of the Company's stockholders of record.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any Prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may reasonably request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of legally binding and enforceable Lock-up Agreements duly executed by each of its officers, directors or any person or entity deemed to be an affiliate of the Company and any stockholders of the Company . The commission for any open market transactions made pursuant to Rule 144 through the Representative in accordance with the terms of the Lock-up Agreements shall not exceed 5% and the sales price shall be reasonably related to the market. During the three year period commencing with the effective date of the Registration Statement, the Company shall not issue any securities under Regulation S and not, without the prior written consent of the Representative, (other than as set forth in the succeeding sentence), sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any debt security of the Company or any shares of Common Stock or any issue of preferred stock of the Company, or any options, rights or warrants with respect to any shares of Common Stock or any issue of preferred stock of the Company, (other than upon exercise of (i) the Representative's Warrants (ii) options granted to Jerry Braun to purchase up to 75,000 ▇▇▇▇▇▇ ▇▇ ▇ommon Stock at $3.00 per share (iii) options granted pursuant to an incentive stock option plan of the Company in effect prior to the filing of the initial Registration Statement, such plan to provide that the Board of Directors of the Company shall have the power to grant, at its discretion, options to eligible individuals, to purchase up to an aggregate amount of 262,500 shares of Common Stock; provided that, for a period of three (3) years commencing on the effective date of the Registration Statement, the exercise price of options granted pursuant to the Option Plan or otherwise during such period cannot be less than the greater of the fair market value per share of Common Stock on the date of grant or $4.00 per share, such plan to otherwise be on terms and conditions satisfactory to the Representative and (iv) options granted pursuant to any further qualified option plan of the Company, approved by the Company's shareholders pursuant to a proxy after the Closing Date, which in any event shall not provide for options to purchase more than an additional 262,500 shares of Common Stock per year for each of two additional years; provided, however, that for a period of three (3) years commencing on the date of such an increase, the exercise price of options granted cannot be less than the greater of the fair market value per share of Common Stock on the date of grant or $4.00 per share, and shall otherwise be on terms and conditions satisfactory to the Representative). Notwithstanding the foregoing sentence, commencing one (1) year after the effective date of the Registration Statement, the Company may, without the further consent of the Representative, issue an aggregate of 500,000 shares of Common Stock for its own account; provided, however, that such issuance shall not be made to (i) employees or current stockholders of affiliates of the Company (except that such persons may acquire shares on a public offering of the Company's securities), (ii) pursuant to Regulation S or (iii) in a private placement pursuant to Regulation D or otherwise at a price (or valuation, in the event of a transaction other than for cash) less than the prevailing market price at the date of such issuance. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, nor any of its officers, directors, stockholders or affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed shall comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Shares, the Common Stock and the Public Warrants to be listed on the Nasdaq SmallCap Market and upon the request of the Representative to be listed on the BSE, and for a period of seven (7) years from the date hereof, use its best efforts to maintain such listings of the Shares, the Common
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants --------------------------------------- and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign -------- ------- corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the UnderwriterRepresentative's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii) as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of 90 days from the effective date of the Registration Statement, certain officers and directors of the Company, agree that they will not directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Representative (collectively, the "Lock-up Agreements"). During the 90 day period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except as set forth in clause (s) of Section 4 hereof. On or before the Closing Date, the ------- Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in its letter to be furnished pursuant to Section 6(i) hereof. -------
(p) The Company shall, for a period of seven (7) years from the date hereof, use its best efforts to maintain the NNM quotation of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) Until the completion of the distribution of the Shares, the Company shall not without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(s) For a period equal to the lesser of (i) seven (7) years from the date hereof, and (ii) the sale to the public of the Representative's Shares, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form S-1 for the registration under the Act of the Representative's Shares.
(t) For a period of five (5) years after the effective date of the Registration Statement, the Representative shall have the right to designate one (1) individual to attend meetings of the Company's Board as an observer; provided that the Board shall have the right to excuse such individual for any part of any meeting, in the Board's sole direction, to protect the attorney- client privilege. The Company shall notify the Representative of each meeting of the Board and the Company shall send to such individual all notices and other correspondence and communications sent by the Company to members of the Board. Such individual shall be reimbursed for all out-of-pocket expenses incurred in connection with his attendance of meetings of the Board.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeRepresentatives) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeRepresentatives, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities Shares and Directed Shares which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representatives or Orri▇▇, ▇▇rr▇▇▇▇▇▇ & ▇utc▇▇▇▇▇ ▇▇▇ ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeRepresentatives, at or prior to the time the Registration Statement becomes effective, to qualify the Securities Shares for offering and sale under the securities laws of such jurisdictions as the Representative Representatives may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Representatives agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities Shares or Directed Shares in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities Shares or Directed Shares or the Underwriter's Preferred Advisors' Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Representatives 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as As soon as practicable, each annual report but in any event not later than 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 occurs (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as 90 days in the case may be), including each amendment thereto, a copy event that the end of any report on Form 10-QSB (or 10-Q, as such fiscal quarter is the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect end of the Company's fiscal year), or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.shall make
Appears in 1 contract
Sources: Underwriting Agreement (Intervu Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) the Registration Statement time and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed, (iii) of the receipt of any comments of the Commission relating to Registration Statement, or any request by the Commission for amendments or supplements to the Registration Statement or for additional information, (iv) 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 the 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 any of the Securities Notes for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) of any request by within the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification period beginning at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as thereafter from time to time in force, so far for such period as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Securities Act to be delivered in connection with sales by any Underwriter or a dealer, of any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company or Underwriters' Counselany subsidiaries thereof, taken as a whole, or of any event that comes to the Prospectus, attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the ActSecurities 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 notify make every reasonable effort to obtain the Representative promptly and prepare withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 the provisions of Rule 430B and in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and any such Issuer Free Writing Prospectus in the manner and within the time period required by Rule 433. As used in this Agreement, “subsidiaries” shall mean all of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, wholly-owned and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available partially-owned direct and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect indirect subsidiaries of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Agent as follows:
(a) The Company shall use its best efforts will furnish to cause the Agents copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Agent 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 the Prospectus, each Pricing Supplement and each Issuer Free Writing Prospectus and any amendments supplement thereto to become effective with as the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.Agents may reasonably request;
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise prepare a Pricing Supplement with respect to any Notes to be offered and sold to or through the Representative and confirm the notice in writing, (iAgents pursuant to Section 2(a) when the Registration Statement, as amended, becomes effective with the Commission or Section 2(b) of this Agreement and, if the provisions after approval 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance each such Pricing Supplement by the Commission of any stop order or of Agents participating in the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectusapplicable offering, 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend file such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing Pricing Supplement with the Commission pursuant to and in accordance with Rule 424(b)(1424(b) under the Act;
(orc) With respect to any Notes to be offered and sold to or through the Agents pursuant to Section 2(a) or Section 2(b) of this Agreement, but only if applicable and if consented to requested by the RepresentativeAgents prior to the Time of Sale, the Company will prepare a final term sheet relating to such Notes in a form approved by the relevant Agents and the Company and file such final term sheet pursuant to Rule 424(b)(4)433(d) not later than under the Commission's close of business on Act within the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) time required by such rule. The Company will give will, if required by Rule 430B(h) under the Representative notice Act, prepare a form of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use in a form approved by the Underwriters in connection with the offering Agents and file such form of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of under the Rules Act not later than may be required by Rule 424(b) under the Act; and Regulations), and the Company will furnish the Representative with copies of any such make no further amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as form of prospectus that shall be disapproved by the case may be,Agents promptly after reasonable notice thereof;
(ed) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior Prior to the time termination of any offering of the Registration Statement becomes effectiveNotes pursuant to Section 2(a) or Section 2(b) of this Agreement, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation if there occurs an event or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred development as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes applicable Disclosure Package would include an untrue statement of a material fact or omits would omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will notify promptly the Agents participating in the applicable offering so that any use of such Disclosure Package may cease until it is amended or supplemented;
(e) The Company will advise each Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus or to file an Issuer Free Writing Prospectus, and the Company will afford the Agents a reasonable opportunity to comment on any such proposed amendment or supplement (other than an amendment or supplement to be made pursuant to incorporation by reference of a document filed under the Exchange Act, any Pricing Supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), and if the Company effects any amendment or supplementation of the Registration Statement or the Prospectus, or files an Issuer Free Writing Prospectus, to which an Agent objects, such Agent shall be relieved of its obligations under Section 2(a) to solicit offers to purchase the Notes until such time as the Company shall have filed such further amendments or supplements such that such Agent is reasonably satisfied with the Registration Statement or Prospectus, as the case may be, as then amended or supplemented, or Issuer Free Writing Prospectus;
(f) If, at any time when a prospectus relating to the Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus, as then amended or supplemented, or the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, made not misleading, or if it is shall be necessary at any time to amend the Registration Statement, file a new registration statement or amend or supplement the Prospectus or the Disclosure Package to comply with the ActAct or the Exchange Act or the respective rules and regulations thereunder, including in connection with use or delivery of the Prospectus, the Company promptly will (1) notify the Representative Agents (which notification shall be by telephone and confirmed in writing) to promptly suspend solicitation of purchases of the Notes, (2) if the Company shall decide to amend or supplement the Registration Statement, the Prospectus or the Disclosure Package, as the case may be, or to file a new registration statement, to promptly advise the Agents by telephone (with confirmation in writing) and to promptly prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement or new registration statement that will correct such statement or omission or effect such compliance, (3) use its best efforts to be satisfactory have any amendment to Underwriters' Counselthe Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (4) supply any amended or supplemented Prospectus or Disclosure Package to the Agents in such quantities as they may reasonably request. If such amendment or supplement, and the Company will furnish any documents, certificates, opinions and letters furnished to the Underwriters copies Agents pursuant to this Section 4 in connection with the preparation and filing of such amendment or supplement, are reasonably satisfactory in all respects to such Agents, upon the filing of such amendment or supplement as soon as available and in such quantities as with the Underwriters may request.
(g) During a period Commission or effectiveness of three (3) years after an amendment to the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-KRegistration Statement, as the case may be, the applicable Agents will resume solicitation of offers to purchase Notes hereunder. Notwithstanding the foregoing, the Company shall not be required to comply with the provisions of this subsection (f) during any period from the time any Agent shall have been notified to suspend the solicitation of offers to purchase the Notes in its capacity as Agent (whether under this subsection (f) or otherwise under this Agreement) to the time the Company shall determine that solicitation of offers to purchase the Notes should be resumed; provided that, if any Agent holds any Notes as principal purchased pursuant to a Terms Agreement or otherwise pursuant to this Agreement, the Company shall comply with the provisions of this subsection (f) during the period when a Prospectus is required to be delivered pursuant to the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act).
(g) The Company will promptly advise the Agents (1) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), including each amendment thereto(2) when, a copy prior to termination of any report offering of Notes pursuant to Section 2(a) or Section 2(b) of this Agreement, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any amendment or supplement to the Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice that would prevent its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose;
(h) If, during the period referred to in (g) above, the Commission shall threaten or initiate any stop order proceeding in respect of the Registration Statement, the Company will use its reasonable efforts to prevent the issuance of any such stop order or to obtain the withdrawal of such order as soon as possible, unless the Company shall, in its sole judgment, determine that it is in the Company’s best interest not to do so;
(i) The Company will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(j) The Company will notify immediately each Agent of any downgrading in the rating of any debt securities of the Company or any proposal to downgrade the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (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 such downgrading, proposal to downgrade or public announcement;
(k) So long as any of the Notes are outstanding, the Company agrees to furnish to the Agents upon their request (i) copies of any reports furnished to the Company’s security holders generally (other than reports made solely to American Express or American Express Travel Related Services Company, Inc.) and (ii) any reports and financial statements filed by or on behalf of the Company with the Commission or any national securities exchange;
(l) The Company agrees to arrange, if necessary, to qualify the Notes for sale under the securities laws of such jurisdictions as the Agents reasonably designate, to maintain such qualifications in effect so long as required for the distribution of the Notes and to arrange for the determination of the legality of the Notes for purchase by institutional investors, except that the Company shall not be required in connection therewith to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject;
(m) Each acceptance by the Company of an offer for the purchase of Notes shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement and in any certificate theretofore given to the Agents pursuant hereto are true and correct at the time of such acceptance, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or his or her agent of the Notes relating to such acceptance as though made at and as of each such time (and it is understood that such representations and warranties shall relate to the Registration Statement and the Prospectus, as amended or supplemented to each such time);
(n) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by filing with the Commission (i) a Pricing Supplement, (ii) an Issuer Free Writing Prospectus, (iii) an amendment or supplement relating solely to an offering of securities other than the Notes or (iv) a Current Report on Form 108-QSB K (or 10-Qany successor form thereto)), if requested by any Agent, the Company shall, furnish the Agents with a certificate of the Company, signed by the Chairman of the Board of Directors, the President or any Vice President and by the Treasurer or an Assistant Treasurer in form satisfactory to the Agents to the effect that the statements contained in the certificate referred to in Section 6(i) hereof which was last furnished to the Agents are true and correct at the time of such amendment, supplement or filing, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement or the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6(i), including modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate;
(o) Each time that the Registration Statement or the Prospectus shall be amended or supplemented or the Company files with the Commission any document incorporated by reference into the Prospectus (other than by filing with the Commission (i) a Pricing Supplement, (ii) an Issuer Free Writing Prospectus, (iii) an amendment thereto and each current report or supplement relating solely to an offering of securities other than the Notes or (iv) a Current Report on Form 8-KK (or any successor form thereto)), including if requested by any amendment theretoAgent, the Company shall furnish the Agents and will promptly deliver a copy their counsel with written opinions of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect counsel of the Company, addressed to the Agents and dated the date of delivery of such opinions, in form satisfactory to the Agents, of the same tenor as the respective opinions referred to in Section 6(g) hereof, but modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented to the time of delivery of such opinions; provided, however, that in lieu of such opinions, such counsel may furnish the Agents with letters to the effect that the Agents may rely on such prior opinions to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such prior opinions shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented to the time of delivery of such letters authorizing reliance);
(p) Each time that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information or the Company files with the Commission any document incorporated by reference into the Prospectus which contains additional financial information (other than by filing with the Commission (i) a Pricing Supplement, (ii) an Issuer Free Writing Prospectus, (iii) an amendment or supplement relating solely to an offering of securities other than the Notes or (iv) a Current Report on Form 8-K (or any successor form thereto)), the Company shall cause its affairs which was released independent public accountants who reviewed or prepared by audited such information, as the case may be, to furnish the Agents, concurrently with such amendment, supplement or on behalf filing, a letter, addressed to the Agents and dated the date of delivery of such letter, in form and substance reasonably satisfactory to the Agents, of the same tenor as the letter referred to in Section 6(j) hereof but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year periodprovided, however, that if the Company has an active subsidiaryRegistration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, the foregoing financial statements will be on a consolidated basis to the extent that the accounts relevant independent public accountants of the Company may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement unless there is contained therein any other accounting, financial or statistical information that, in the reasonable judgment of the Agents or Counsel for the Agents, should be covered by such letter or letters, as the case may be, in which event such letter or letters, as the case may be, shall also cover such other information;
(q) Between the date on which any Agent agrees to purchase Notes from the Company as principal for resale and the date of delivery of such Notes, the Company will not offer or sell, or enter into any agreement to sell, pledge, or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to any of its subsidiary are consolidated.debt securities (other than such Notes), other than borrowings under the Company’s revolving credit agreements and lines of credit, the private placement of securities and issuances of its commercial paper, or publicly disclose the intention to make any such offer, sale, pledge or disposition or filing;
(r) If so stated in any Terms Agreement, the Company will use its best efforts to cause an application for the listing of the Notes on The New York Stock Exchange, Inc. or listing or quotation on such other securities exchange or automatic quotation system specifi
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Securities to the public by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice same in writing, (i) when the Registration Statement, as amended, becomes effective, when any post-effective with amendment to the Commission Registration Statement 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 post-effective amendment to the Registration Statement becomes effective430A, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the outcome of which may result in the suspension of the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of any 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) with the Commission, or transmit the Prospectus by a means reasonably calculated to result in filing the same with the Commission Commission, pursuant to Rule 424(b)(1) of the Rules and Regulations (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementRules and Regulations) within the time period specified in Rule 424(b)(1) (or, if applicable and if consented to by the Underwriters, Rule 424(b)(4)).
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of any of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such amendment or supplement to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, its counsel ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distributiondistribution contemplated hereby, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Exchange Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, Regulations so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If If, at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the Representative:
i) unaudited quarterly reports of earnings as certified by the Company's principal financial and accounting officer;
ii) concurrently with furnishing such annual reports to its stockholders, 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 the Company's independent certified public accountants;
iii) as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its respective affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses respective business which the Representative may request. During such three (3)-year five-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock.
(j) The Company will furnish to the Representative, without charge and at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (one of which will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with originally executed copies of duly executed, legally binding and enforceable Lock-Up Agreements, which are in form and substance satisfactory to the Representative. On or before the Closing Date, the Company shall deliver instructions to its transfer agent authorizing such transfer agent to place appropriate legends on the certificates representing the securities of the Company subject to the Lock-Up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company agrees that, for the duration of the Lock-Up Period (as defined in SECTION 1(w), it and its future subsidiaries will not, without the prior written consent of JSC (i) issue, sell, contract or offer to sell, grant an option for the purchase or sale of, assign, transfer, pledge, hypothecate, distribute or otherwise dispose of, directly or indirectly, any shares of capital stock or any option, right or warrant with respect to any shares of capital stock or any security convertible, exchangeable or exercisable for capital stock, provided, that the Company may, without consent of JSC, issue securities (a) upon the exercise of any outstanding stock options or warrants granted or issued on or prior to the date hereof, and (b) subject to the terms of Section 4(u) of this Agreement, up to an additional 116,283 shares of Common Stock issuable upon the exercise stock options which may be granted pursuant to the Company's 1997 Stock Option Plan, or (ii) file any registration statement for the offer or sale of securities issued or to be issued by the Company or any present or future subsidiaries.
(m) Neither the Company nor any of its officers or directors will take, directly or indirectly, any action designed to stabilize or manipulate the price of any securities of the Company, or which might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any such securities.
(n) The Company shall apply the net proceeds from the sale of the Securities offered to the public in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(o) The Company shall timely file all such reports, forms or other documents as may be required from time to time under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents will comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(p) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date hereof, the Closing Date or the relevant Option Closing Date, as the case may be) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to SECTION 6(j) hereof.
(q) The Company shall cause the Common Stock to be quoted on the Nasdaq SmallCap Market and listed on the Boston Stock Exchange, for a period of five (5) years from the date hereof, use its best efforts to maintain quotation of the Common Stock to the extent outstanding on the Nasdaq SmallCap Market or the Nasdaq National Market provided that the Company shall not be required to maintain the Boston Stock Exchange listing if the Common Stock is listed in the Nasdaq National Market.
(r) For a period of three (3) years from the Closing Date, the Company shall at the request of the Representative, furnish or cause to be furnished to the Representative and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and (ii) a list of holders of all of the Company's securities.
(s) For a period of three (3) years from the Closing Date, the Company shall, at the Company's sole expense, (i) promptly provide the Representative, upon any and all requests of the Representative, with a "blue sky trading survey" for secondary sales of the Company's securities, prepared by counsel to the Company, and (ii) take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the "blue sky" laws of those jurisdictions, provided that such jurisdictions do not require the Company to qualify as a foreign corporation.
(t) As soon as practicable, but in no event more than thirty (30) days after the effective date of the Registration Statement, the Company agrees to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than three (3) years.
(u) Without the prior written consent of JSC, the Company hereby agrees that it will not, for the duration of the Lock-Up Period, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement (i) permitting the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (a) at an exercise or sale price per share that is less than the greater of the initial public offering price of the Shares set forth herein or the fair market value per share of the Common Stock on the date of grant or sale, or (b) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company on the date of grant or issuance; or (ii) permitting the existence of stock appreciation rights, phantom options or similar arrangements; or (iii) permitting the payment for such securities with any form of consideration other than cash; or (iv) permitting the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options, warrants or other contract rights to exceed 545,000 (excluding the Representative's Warrants, the 100,000 warrants issued to the Bridge Investors and the Representative's Option to purchase 230,000 shares to cover-allotments, if any); or (v) to any direct or indirect beneficial holder on the date hereof
Appears in 1 contract
Sources: Underwriting Agreement (Cumetrix Data Systems Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Securities by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriter, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement Agreement; and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Underwriter in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), ) and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriter or its counsel ("Underwriter's Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purposeinformation; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Underwriter agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts effort to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Underwriter's Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.the
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments amendment thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission 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 post-effective amendment to the Registration Statement or any registration statement filed pursuant to Rule 462(b) under the Act relating to the Registration Statement is filed or becomes effective, (ii) of if information is omitted from the issuance by Registration Statement pursuant to Rule 430A under the Commission of any stop order or of Act, when the initiation or the threatening of any proceeding suspending the effectiveness Prospectus or
(b) The Company will furnish to you, without charge, two signed copies of the Registration Statement or any order preventing or suspending as originally filed with the use Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Preliminary Prospectus or the Prospectus, or any Registration Statement as originally filed and of each amendment or supplement thereto, or the institution of proceedings for that purpose, thereto as you may reasonably request.
(iiic) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for The Company will not file any amendment to the Registration Statement 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 for additional informationsupplement) or to which you have reasonably objected after being so advised, or which is not in compliance with the Act. If The Company will prepare and file with the Commission any amendments or supplements to the state securities commission authority Registration Statement or Prospectus which, in the reasonable opinion of any state shall enter a stop order counsel of the several Underwriters, may be necessary or suspend such qualification at any time, advisable in connection with the Company will make every effort to obtain promptly distribution of the lifting of such orderShares by the Underwriters.
(cd) The Company shall file has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Prospectus (in form and substance satisfactory Prepricing Prospectus. The Company consents to the Representative) or transmit the Prospectus by a means reasonably calculated to result use, in filing accordance with the Commission pursuant to Rule 424(b)(1) (or, if applicable Act and if consented to the securities or "blue sky" laws of the jurisdictions in which the Shares are offered by the Representativeseveral Underwriters and by dealers, pursuant prior to Rule 424(b)(4)the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable (but in no event later than 48 hours from the execution and delivery of this Agreement) and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a
(iif) The Company will cooperate with you and counsel for the fifteenth Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or "blue sky" laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business day in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction 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) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commissionand ending not later than 15 months thereafter, as soon as practicable after the case may be at end of such period, which consolidated earnings statement shall satisfy the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(bprovisions of Section 11(a) of the Rules Act and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered Rule 158 under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time will advise you in force, writing when such statement has been so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 requestmade available.
(gh) During a the period of three (3) ending five years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the National Association of Securities Dealers, Inc. (the "NASD"), the Nasdaq Stock Market or any national securities exchange, or mailed to shareholders and (ii) 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. In addition, until the earlier of such date that the Company has reported a profit for two consecutive years and either (i) the agreement with the OCC dated November 14, 1996 (the "OCC Agreement") has been terminated or (ii) the capital ratios set forth in the OCC Agreement have been complied with for 12 consecutive months, and, to the extent legally permissible, the Company will furnish to you, as soon as practicableit is available, each annual report (including financial statements audited by independent public accountants), and a copy of each report on Form 10-KSB from the FRB, OCC or DBF relating to the Company or the Bank. The Company agrees to use its best efforts to provide such reports to you including, without limitation, seeking approval from each such regulatory agency to release such reports to you.
(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 statements set forth under the caption "Use of Proceeds" in the Prospectus.
(j) If information is omitted from the Registration Statement pursuant to Rule 430A under the Act, the Company will timely file the Prospectus or 10-Ka term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(k) For a period of 180 days after the date of the Prospectus as first filed with the Commission pursuant to Rule 424(b) under the Act, without the prior written consent of Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc., the Company will not, directly or indirectly, issue, sell, contract to sell, offer or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, except (i) to the Underwriters pursuant to this Agreement, (ii) pursuant to and in accordance with the Company's stock option plans described in the Prospectus, (iii) pursuant to 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 or (iv) to employees pursuant to its employee stock purchase plan.
(l) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary Subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) 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,
(o) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of ) the "blue sky" laws of each state where necessary to permit market making transactions and secondary trading, and will comply with such blue sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof, provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares in any jurisdiction where it is not now so subject.
(p) If at any time during the 90-day period after the first date that any of the Shares are consolidatedreleased 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 reasonable 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, promptly consult with Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc. concerning the advisability and substance of, and, if appropriate, disseminate a press release or other public statement reasonably satisfactory to Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc. responding to or commenting on such rumor, publication, or event.
(q) 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.
(r) The Company will maintain a transfer agent and, if necessary under the jurisdiction of its incorporation or the applicable rules of the Nasdaq National Market or any national securities exchange on which the Common Stock is then listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock.
(s) The Company hereby agrees that this Agreement shall be deemed, for all purposes, to have been made and entered into in Pinellas County, Florida. The Company agrees that any dispute hereunder shall be litigated solely in the Circuit Court of the State of Florida in Pinellas County, Florida or in the United States District Court for the Middle district of Florida, Tampa Division, and further agrees to submit itself to the personal jurisdiction of such courts.
Appears in 1 contract
Sources: Underwriting Agreement (Fidelity National Corp /Ga/)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 to become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus to comply with the Act or for additional informationany other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which Issuer Free Writing Prospectus to you and counsel for the Company proposes for use by the Underwriters in connection Underwriters, and obtain your consent prior to filing any of those with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as which consent will not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the case may be at Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters, a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will furnish file all documents required to be filed with the Underwriters copies Commission pursuant to Sections 13, 14 and 15 of such amendment or supplement as soon as available the Exchange Act in the manner and in such quantities as within the Underwriters may requesttime periods required by the Exchange Act.
(gj) During a period The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of three the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (3or obtain exemptions from the application of) years the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as required for the distribution of the Shares, but in no event beyond one year after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earning statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earning statement shall satisfy the provisions of Section 11(a) of the Act.
(l) If this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 75th day after the date of the Prospectus (the “Lock-Up Period”), the Company agrees not to, directly or indirectly, without the prior written consent of the Representative on behalf of the Underwriters, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be reasonably expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration for the offer and sale by the Company of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing. The restrictions contained in the preceding sentence shall not apply to (A) the Shares to be sold hereunder, (B) the issuance of shares of Common Stock, restricted stock units, stock appreciation rights, options to purchase Common Stock or performance units pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans in effect on the date of this Agreement or pursuant to currently outstanding restricted stock units, stock appreciation rights, options, warrants or rights, (C) the conversion or exchange of options, warrants or other securities of the Company convertible into or exchangeable for Common Stock of the Company outstanding as of the date of this Agreement, (D) the issuance of shares of Series A convertible preferred stock as dividends on outstanding shares of Series A convertible preferred stock or (E) the issuance of shares of Common Stock as part of the purchase price of businesses acquired during the Lock-Up Period or in satisfaction of the Company’s earn-out obligations in connection with those acquisitions or the prior acquisitions of (i) substantially all the assets of MobileNet, Inc. and (ii) Euroscan Holding B.V., including, indirectly, its wholly-owned subsidiaries Euroscan B.V., Euroscan GmbH Vertrieb Technischer Geräte, Euroscan Technology Ltd. and Ameriscan, Inc., and (F) any equity offerings by the Company in offerings registered under the Act or exempt from the registration requirements thereof in which the Representative was offered the opportunity to act as lead underwriter, initial purchaser or placement agent for such offering. Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues a release concerning earnings or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the release concerning earnings or the material news or the occurrence of the material event, unless the Representative waives such extension in writing. The Company agrees to cause each executive officer, director and shareholder of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary consolidated subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ Global Market (“NASDAQ”) all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Standby Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Standby Securities by the Underwriters Standby Underwriter of which the Representative Standby Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Standby Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Standby Underwriter and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeStandby Underwriter and its Counsel) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeStandby Underwriter, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Standby Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Standby Underwriter in connection with the offering of the Standby Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Standby Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Standby Underwriter or Resc▇ ▇▇▇s▇▇▇ ▇▇▇e▇▇ & ▇erg▇▇ ▇▇▇ ("Counsel to the Standby Underwriter") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeStandby Underwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Standby Underwriter may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Standby Underwriter agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Standby Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' CounselCounsel to the Standby Underwriter, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Standby 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 satisfactory to Underwriters' CounselCounsel to the Standby Underwriter, and the Company will furnish to the Underwriters Standby Underwriter copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Standby Underwriter may request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Standby Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeStandby Underwriter:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form 4 5 furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Standby Underwriter may reasonably request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its common stock.
(j) The Company will furnish to the Standby Underwriter or on the Standby Underwriter's order, without charge, at such place as the Standby Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Standby Underwriter may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Standby Underwriter with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of six months from the effective date of the Registration Statement, each of the Company's officers, directors and all holders of the common stock of the Company or securities exchangeable or exercisable for or convertible into shares of common stock agrees that it or he or she will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of common stock or securities convertible into, exercisable or exchangeable for or evidencing any right
Appears in 1 contract
Sources: Standby Underwriter's Agreement (Maxicare Health Plans Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company will notify the Representative promptly by telephone and (if requested by the Representative) will confirm such advice in writing, (1) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) if Rule 430A under the Securities Act is used, or the Prospectus is otherwise required to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act, (3) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Preliminary Prospectus, the Prospectus, the Registration Statement or any amendment or supplement thereto, or refusing to permit the effectiveness of the Registration Statement (“Stop Order”), or the initiation of any proceedings for any of those purposes, (5) of the happening of any event during the period mentioned in paragraph (f) below which in the reasonable judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading, and (6) of the receipt of any comments from the Commission or the Blue Sky or securities authorities of any jurisdiction regarding the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto. The Company will use its best efforts to prevent the issuance of any Stop Order by the Commission or any notification from the Blue Sky or securities authorities of any jurisdiction suspending the qualification or registration of the Units, Shares, Warrants or shares of Common Stock issuable upon exercise of the Warrants (the “Warrant Shares,” and together with the Units, Shares, Warrants, Representative’s Units, Representative’s Shares and the Representative’s Warrant Shares, the “Securities”) for sale in such jurisdictions, and if at any time the Commission shall issue any Stop Order, or if the Blue Sky or securities authorities of any jurisdiction shall issue notification suspending the qualification or registration of the Securities, the Company will make every reasonable effort to obtain the withdrawal of such Stop Order or notification at the earliest possible moment. The Company will promptly advise the Representative of its receipt of any notification with respect to the suspension of the qualification or registration of the Securities for offer or sale in any jurisdiction or the initiation or threatening of any action or proceeding for such purpose.
(b) Prior to any public offering of the Units by the Underwriters, the Company will endeavor in good faith, in cooperation with the Representative and its counsel, to register or qualify the Securities for offer or sale, and the Warrant Shares for issuance, as may be required under the Blue Sky or securities laws, rules or regulations of such jurisdictions as the Representative may request; provided that in no event shall the Company be obligated to register or qualify to do business as a foreign corporation in any jurisdiction where it is not now so registered or qualified or to take any action which would subject it to general service of process, or to taxation as a foreign corporation doing business, in any jurisdiction where it is not now so subject. The Company will pay all fees and expenses relating to the registration or qualification of the Securities under such Blue Sky or securities laws of such jurisdictions as the Representative may designate (including legal fees of counsel for the registration or qualification of the Securities, and in all cases, all disbursements and expenses incurred by such counsel in connection therewith). After registration, qualification or exemption of the Securities for offer and sale, and the Warrant Shares for issuance, in such jurisdictions, and for as long as any offering pursuant to this Agreement continues, the Company, at the Representative’s request, will file and make such statements or reports, and pay the fees applicable thereto, at such times as are or may be required by the laws, rules or regulations of such jurisdictions in order to maintain and continue in full force and effect the registration, qualification or exemption for offer or sale of the Securities, and the issuance of the Warrant Shares upon exercise of the Warrants, in such jurisdictions. After the termination of the offering contemplated hereby, and as long as any of the Securities are outstanding, the Company will file and make, and pay all fees applicable thereto, such statements and reports and renewals of registration as are or may be required by the laws, rules or regulations of such jurisdictions to maintain and continue in full force and effect the registration, qualification or exemption for secondary market transactions in the Units, the Common Stock and the Warrants, and the issuance of the Warrant Shares upon the exercise of the Warrants, in the various jurisdictions in which the Units, Shares and Warrants were originally registered, qualified or exempted for offer or sale.
(c) The Company will furnish to the Representative and its counsel, without charge, two copies (one of which shall be manually signed) of the Registration Statement as originally filed on Form SB-2 and of any amendments (including post-effective amendments thereto), including financial statements and schedules, if any, and all consents, certificates and exhibits (including those incorporated therein by reference to the extent not previously furnished to the Representative), heretofore or hereafter made, signed by or on behalf of its officers whose signatures are required thereon and a majority of its board of directors, and will furnish to the Representative, without charge, for transmittal to each of the other Underwriters a copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, if any, but without exhibits.
(d) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with under the Commission as promptly as practicable Securities Act. Upon such effectiveness, if the Company and the Representative have determined not to proceed pursuant to Rule 430A under the Securities Act, the Company will not at timely file a Prospectus pursuant to, and in conformity with, Rule 424(b), if required, and if the Company and the Representative have determined to proceed pursuant to Rule 430A under the Securities Act, the Company will timely file a Prospectus pursuant to, and in conformity with, Rules 424(b) and 430A under the Securities Act.
(e) The Company will give the Representative and its counsel advance notice of its intention to file any timeamendment to the Registration Statement or any amendment or supplement to the Prospectus, whether before or after the effective date of the Registration Statement, and will not file any such amendment to or supplement unless the Registration Statement Company shall have first delivered copies of such amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which Representative and its counsel and the Representative and its counsel shall have given consent to the filing of such amendment or supplement, which consent shall not previously have been advised and furnished with a copy, be unreasonably withheld. Any such amendment or to which the Representative supplement shall have objected within two (2) business days after its receipt thereof or which is not in compliance comply with the Securities Act, the Exchange Act or the Rules and Regulations.
(bf) As soon as From and after the Company is advised or obtains knowledge thereofEffective Date, the Company will advise deliver to each of the Representative and confirm the notice in writingUnderwriters, (i) when the Registration Statementwithout charge, as amended, becomes effective with the Commission and, if the provisions many copies 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 post-effective amendment to the Registration Statement becomes 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or thereto as the institution of proceedings for that purpose, (iii) Representative may reasonably request. The Company consents to the use of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement Prospectus or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to thereto by the Representativeseveral Underwriters and by all dealers to whom the Units may be sold, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters both in connection with the offering or sale of the Securities which differs from the corresponding prospectus on file at the Commission, Units for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required law to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretoconnection therewith. If at any during such period of time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, occur which in the opinion judgment of counsel for the Company or Underwriters' Counsel, counsel to the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to Representative should be stated therein or necessary set forth in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Actlaw, the Company will notify the Representative promptly and forthwith prepare and duly file with the Commission an appropriate supplement or amendment or supplement in accordance with Section 10 thereto, and will deliver to each of the ActUnderwriters, each without charge, such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters number of copies of such amendment or supplement as soon as available and in such quantities thereof as the Underwriters Representative may reasonably request.
(g) During The Company will promptly pay all expenses in connection with (1) the preparation, printing, filing, distribution and mailing (including, without limitation, express delivery service) of the Registration Statement, each Preliminary Prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (if any); (2) the issuance and delivery of the Units, the Warrants and the Shares; (3) the fees and expenses of legal counsel and independent accountants for the Company relating to, among other things, opinions of counsel, audits, review of unaudited financial statements and cold comfort review; (4) the fees and expenses of any registrar, transfer agent and Warrant Agent for the Common Stock and the Warrants; (5) the printing, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Agreement Among Underwriters, the Selected Dealer Agreement, the Warrant Agreements and the Underwriters’ Questionnaire; (6) furnishing 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 Underwriters or by dealers to whom the Units may be sold; (7) any fees and communication expenses with respect to filings required to be made by the Underwriters with the National Association of Securities Dealers, Inc. (the “NASD”); and (8) the expenses of tombstone advertisements, due diligence meetings and lucite cubes. The Company will also pay all expenses in connection with the Company’s application to list the Units, Shares and Warrants on The Nasdaq Stock Market, Inc. (“NASDAQ”) or on the American Stock Exchange (“AMEX”). In addition, the Company hereby agrees to pay to the Representative a non-accountable expense allowance set forth in Section 3 above.
(h) On each of the Closing Dates, the Company shall sell to the Representative (or its executive officers), Representative’s Warrants described in Section 3 above.
(i) 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 Representative 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 several Underwriters for all of their out-of-pocket expenses (including fees and expenses of counsel to the Representative) reasonably incurred by them in connection herewith.
(j) Until ninety (90) days after the Effective Date, without the prior written consent of the Representative, the Company will not offer, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company, except as provided for and as contemplated by this Agreement.
(k) On or prior to the Closing Date, the Company shall obtain from each of its officers, directors and existing stockholders and the holders of stock options or other rights to acquire shares of Common Stock, his, her or its enforceable written agreement, in form and substance satisfactory to counsel to the Representative, that for a period of three six months after the Effective Date (3or any longer period required by any jurisdiction in which the offer and sale of the Units is to be registered or qualified), he, she or it will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company (including without limitation any shares of Common Stock), owned by him, her or it as of the Closing Date without the prior written consent of the Company (the “Offering Restrictions”) and the Company agrees not to release such persons from the restrictions without prior written consent of the Representative. In addition, the Company will instruct the transfer agent accordingly and the certificates representing these securities will bear a legend to the foregoing effect.
(l) The Company has reserved and shall continue to reserve and keep available the maximum number of shares of its authorized but unissued Common Stock and other securities for issuance upon exercise of the Warrants and the Representative’s Warrants.
(m) For a period of five years after the date hereofof this Agreement, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representativeshall:
(i) every press release retain Singer Lewak G▇▇▇▇▇▇▇▇ & G▇▇▇▇▇▇▇▇, LLP or another nationally recognized firm of independent public accountants, as its auditors, and every material news item or article at its own expense, shall cause such independent certified public accountant to review (but not audit) the Company’s financial statements for each of interest the first three fiscal quarters of each fiscal year prior to the announcement of quarterly financial community information, the filing of the Company’s Form 10-Q quarterly reports and the mailing of quarterly financial information to its stockholders, provided this shall not require the inclusion of such a review report in respect the Company’s quarterly filings.
(ii) cause the Company’s Board of Directors to meet not less frequently than quarterly, upon proper notice, and cause an agenda and minutes of the preceding meeting to be distributed to directors prior to each such meeting;
(iii) distribute to its security holders, within 120 days after the end of each fiscal year, an annual report (containing certified financial statements) prepared in accordance with, and satisfying the substantive disclosure requirements of Rule 14a-3(b) of Regulation 14A promulgated by the Commission under the Securities Exchange Act of 1934, as amended; and
(iv) appoint a transfer agent for the Common Stock and Warrant Agent for the Warrants, in each case acceptable to the Representative.
(n) For a period of five years after the date of this Agreement, the Company shall furnish each of the Underwriters without charge, the following:
(i) within ninety (90) days after the end of each fiscal year, financial statements certified by the independent certified public accountants referred to in Section 4(m)(i) above, including a balance sheet, statement of operations, statement of stockholders’ equity and statement of cash flows, in each case for the Company and its then existing subsidiaries (if any), with, supporting schedules, prepared in accordance with generally accepted accounting principles, as at the end of such fiscal year and for the twelve months then ended, accompanied by a copy of the certificate or report thereon of such independent certified public accountants;
(ii) (x) for so long as the Company is a reporting company under any of Sections 12(b), 12(g) or 15(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the “Exchange Act”), promptly after filing with the Commission, copies of all reports and proxy soliciting material which the Company is required to file under the Exchange Act, or (y) at such times as the Company is not a reporting company under the aforesaid provisions of the Exchange Act, as soon as practicable after the end of each of the first three fiscal quarters of each fiscal year, financial statements of the Company, including a balance sheet, statement of operations, statement of stockholders’ equity and statement of cash flows as at the end of, or its affairs which was released or prepared by or on behalf for each such fiscal quarter and the comparable period of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses preceding year, which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.need not b
Appears in 1 contract
Sources: Underwriting Agreement (Noninvasive Medical Technologies Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Representative in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the UnderwriterRepresentative's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters Representative copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Representative may request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. .
(vii) During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of thirteen (13) months from the effective date of the Registration Statement, the officers and directors of the Company, holders of all shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, agree that it or he or she will not directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Representative and the Company (collectively, the "Lock-up Agreements"). During the thirteen (13) month period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except as set forth in clause(s) of Section 4 hereof. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in its letter to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall use cause the Common Stock to be quoted on NSM and for a period of seven (7) years from the date hereof, use its best efforts to maintain the NSM quotation of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than 5 business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than 30 days from the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that it will not for a period of thirteen (13) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement permitting the grant, issue or sale of any shares of Common Stock or other securities of the Company (i) in an amount greater than an aggregate of 500,000 shares, (ii) at an exercise or sale price per share less than the greater of (a) the initial public offering price of the Shares set forth herein and (b) the fair market value of the Common Stock on the date of grant or sale, (iii) to any direct or indirect beneficial holder on the date hereof of more than 10% of the issued and outstanding shares of Common Stock, (iv) with the payment for such securities with any form of consideration other than cash, (v) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company on the date of grant or issuance, or (vi) permitting the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Shares, the Company shall not without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with re
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) a. The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Underwriters shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) b. As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriters and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) c. The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriters) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) d. The Company will give the Representative Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any post-post- effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or its counsel shall object.
(e) e. The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriters may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) f. During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or the Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
g. As soon as practicable, but in any event not later than forty-five (g45) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
h. During a period of three ________ (3___) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeUnderwriters:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Underwriters may request. During such three (3)-year ________-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
i. The Company will maintain a transfer agent and warrant agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
j. The Company will furnish to the Underwriters or on the Underwriters' order, without charge, at such place as the Underwriters may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may request.
k. On or before the effective date of the Registration Statement, the Company shall provide the Global Coordinator with true original copies of duly executed, legally binding and enforceable Lock-up Agreements pursuant to which, for a period of six (6) months [include exception for certain holders] from the effective date of the Registration Statement, each of the Company's officers and directors, all holders of 5% or more of the Common Stock issued and outstanding on the effective date of the Registration Statement, and all holders of options, warrants or other securities exchangeable or exercisable for or convertible into 5% or more of the Common Stock issued and outstanding on the effective date of the Registration Statement agrees that it or he or she (i) will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representative and the Global Coordinator and the Company and (ii) waives any and all rights to request or demand the registration pursuant to the Act, of any securities of the Company which are registered in the name of or beneficially owned by it or he or she, respectively. The Company will also use its best efforts to cause all holders of less than 5% of the Common Stock issued and outstanding on the effective date of the Registration Statement and all holders of options, warrants or other securities convertible, exercisable or exchangeable for less than 5% of the Common Stock issued and outstanding on the effective date of the Registration Statement to enter into Lock-up Agreements. During the six (6) month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative and the Global Coordinator, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except pursuant to options, rights or warrants existing on the effective date of the Registration Statement; PROVIDED, HOWEVER, that the Company and any subsidiaries or affiliates thereof may sell or offer for sale any of their securities without the consent of the Representative and the Global Coordinator in connection with (i) any merger or acquisition transaction, joint venture or other "corporate partnering" transaction entered into by any of the Company and its subsidiaries or affiliates and (ii) up to _________ shares of Common Stock reserved for grants of options under the Company's stock option plan as described in the Prospectus. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
l. Neither the Company nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
m. The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
n. The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
o. The Company shall furnish to Representative and the Global Coordinator as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than [________ (__)] days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to SECTIONS 6(l) and 6(m) hereof.
p. The Company shall cause the Common Stock to be quoted on AMEX and the SSE and use its best efforts to maintain the AMEX and SSE listing of the Common Stock to the extent outstanding.
q. For a period of ______ (__) year[s] from the Closing Date, upon the Underwriters' written request, the Company shall furnish to the Representative and the Global Coordinator at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
r. The Company hereby agrees that it will not, for a period of six (6) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Common Stock, except as provided in subsection (ii) of this subparagraph; (ii) the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options or warrants issued by the Company to exceed the aggregate _______ shares (subject to red
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Shares, Redeemable Warrants and Convertible Debentures by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeRepresentatives) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeRepresentatives, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and, except as may reasonably be required by law, will not file any such prospectus to which the Representatives or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeRepresentatives, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Representatives may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Representatives agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Representatives 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeRepresentatives:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
▇▇▇. ▇▇ soon as they are available, copies of all reports (ifinancial or other) mailed to stockholders;
▇▇. ▇▇ soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Representatives may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and a trustee ("Trustee") for the Convertible Debentures.
(j) The Company will furnish to the Representatives or on the Representatives' order, without charge, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representatives may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representatives with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of eighteen (18) months from the effective date of the Registration Statement, each of the Company's stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she (i) will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representatives (collectively, the "Lock-up Agreements") and (ii) waives, during such 18 month period, any and all rights to request or demand the registration pursuant to the Act, of any securities of the Company which are registered in the name of or beneficially owned by it or he or she, respectively. Except (i) pursuant to the Acquisition Agreements entered into by the Company prior to the date of, and described in, the Prospectus, (ii) pursuant to awards that may be made from time to time following the date of the Prospectus under the 1996 Stock Option Plan, as such plan may be amended from time to time by the stockholders of the Company and (iii) pursuant to Acquisition Agreements to be entered into by the Company from time to time which have been approved by the Board of Directors of the Company and are on a basis consistent with the Acquisition Agreements entered into by the Company prior to the date hereof and described in the Prospectus, during the 18 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representatives, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) None of the Company, the Corporate Entities or the Initial Affiliated Practices, nor any of its or their respective officers, directors, stockholders, nor any of its or their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representatives as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to SECTIONS 6(k) and 6(l) hereof.
(p) The Company shall cause the Common Stock and Convertible Debentures to be quoted on Amex and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock and the Convertible Debentures to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representatives at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and Convertible Debentures (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the
Appears in 1 contract
Sources: Underwriting Agreement (Integrated Physician Systems Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Sources: Underwriting Agreement (Dynacs Inc)
Covenants and Agreements of the Company. (a) The Company covenants and agrees with each of the Underwriters as follows:
(ai) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Underwriters shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(bii) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriters and the Selling Shareholders and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(ciii) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriters) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(div) The Company will give the Representative Underwriters and the Selling Shareholders notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or ▇▇▇▇▇▇▇ Breed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP ("Underwriters' Counsel"), shall object.
(ev) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriters may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(fvi) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
vii) As soon as practicable, but in any event not later than 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 occurs (g90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Underwriters, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of he Registration Statement.
viii) During a period of three (3) five years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the RepresentativeUnderwriters:
(ia) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(b) concurrently with furnishing such annual reports to its stockholders, 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;
(c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(e) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iif) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Underwriters may request. During such three five (3)-year 5) year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
ix) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
x) The Company will furnish to the Underwriters or on the Underwriters' order, without charge, at such place as the Underwriters may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may request.
xi) On or before the effective date of the Registration Statement, the Company shall provide the Underwriters with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of not less than nine (9) months from the effective date of the Registration Statement, holders of all shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, will not directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ (collectively, the "Lock-up Agreements"). On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company's ledgers. During the nine (9) month period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. During the nine (9) month period commencing with the effective date of the Registration Statement, the Company shall not file any registration statement with the Securities and Exchange Commission on Form S-8 without the prior written consent of the Underwriters.
xii) Neither the Company nor any of the Subsidiaries, nor any of their officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
xiii) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
xiv) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
xv) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letter to be furnished pursuant to Section 6(j) hereof. xvi) The Company shall cause the Common Stock to be quoted on the AMEX or a National Securities exchange and for a period of seven (7) years from the date hereof, and use its best efforts to maintain the AMEX quotation or exchange listing of the Common Stock to the extent outstanding. xvii) For a period of five (5) years from the Closing Date, the Company shall furnish to the Underwriters at the Underwriters' request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Securities to the public by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice same in writing, (i) when the Registration Statement, as amended, becomes effective, when any post-effective with amendment to the Commission Registration Statement 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 post-effective amendment to the Registration Statement becomes effective430A, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the outcome of which may result in the suspension of the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of any 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeRepresentatives) with the Commission, or transmit the Prospectus by a means reasonably calculated to result in filing the same with the Commission Commission, pursuant to Rule 424(b)(1) of the Rules and Regulations (or, if applicable and if consented to by the Representatives, pursuant to Rule 424(b)(4) of the Rules and Regulations) within the time period specified in Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement).
(d) The Company will give the Representative Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Representatives in connection with the offering of any of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such amendment or supplement to which the Representatives or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, its counsel ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeRepresentatives, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Representatives may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distributiondistribution contemplated hereby, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Representatives agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Exchange Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, Regulations so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If If, at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act, the Company will notify the Representative Representatives 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 satisfactory to Underwriters' Counsel, Counsel and the Company will furnish to the Underwriters Representatives copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Representatives may request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), ) and each unaudited quarterly report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative earnings and will deliver to the RepresentativeRepresentatives:
i) concurrently with furnishing such quarterly reports to the Commission statements of income of the Company for such quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial and accounting officer;
ii) concurrently with furnishing such annual reports to its stockholders, 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 the Company's independent certified public accountants;
iii) as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in respect of the Company, Company or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses business which the Representative Representatives may request. During such three (3)-year seven-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer and warrant agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Units, the Common Stock and the Redeemable Warrants.
(j) The Company will furnish to the Representatives, without charge and at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (one of which will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representatives may reasonably request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representatives with originally-executed copies of duly executed, legally binding and enforceable Lock-Up Agreements which are in form and substance satisfactory to the Underwriters. On or before the Closing Date, the Company shall deliver instructions to its transfer agent authorizing such transfer agent to place appropriate legends on the certificates representing the securities of the Company subject to the Lock-Up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company agrees that, for a period of twelve (12) months commencing on the effective date of the Registration Statement, and except as contemplated by this Agreement, it and its present and future subsidiaries will not, without the prior written consent of the Representatives issue, sell, contract or offer to sell, grant an option for the purchase or sale of, assign, transfer, pledge, distribute or otherwise dispose of, directly or indirectly, any securities or any option, right or warrant with respect to any securities for cash at less than the greater of the initial public offering price of the Units or the fair market value of such Units, except pursuant to stock options or Representatives' Warrants issued on the date hereof.
(m) Neither the Company nor any of its officers, directors, stockholders or affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to stabilize or manipulate the price of any securities of the Company, or which might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any such securities.
(n) The Company shall apply the net proceeds from the sale of the Securities offered to the public in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(o) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, any Form SR required by Rule 463 under the Act) from time to time under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents will comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(p) The Company shall furnish to the Representatives as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date hereof, the Closing Date or the relevant Option Closing Date, as the case may be) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Section 7(k) hereof.
(q) The Company shall cause the Units, the Common Stock and the Redeemable Warrants to be quoted on the Nasdaq National Market and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the Nasdaq National Market quotation of the Units, the Common Stock and the Redeemable Warrants to the extent outstanding.
(r) For a period of five (5) years from the Closing Date, the Company shall at the request of the Representatives, furnish or cause to be furnished to the Representatives and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Units, the Common Stock and the Redeemable Warrants, and (ii) a list of holders of all of the Company's securities.
(s) For a period of five (5) years from the Closing Date, the Company shall, at the Company's sole expense, (i) promptly provide the Underwriters upon any and all requests of the Underwriters, with a "blue sky trading survey" for secondary sales of the Company's securities, prepared by counsel to the Company, and (ii) take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the "blue sky" laws of those jurisdictions, provided that such jurisdictions do not require the Company to qualify as a foreign corporation.
(t) As soon as practicable, but in no event more than thirty (30) days after the effective date of the Registration Statement, the Company agrees to take all necessary and appropriate actions to be included in the Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(u) Until the completion of the distribution of the Units to the public and during any period during which a prospectus is required to be delivered, the Company shall not, without the prior written consent of the Underwriters, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(v) For a period of five (5) years after the effective date of the Registration Statement, the Company shall cause one (1) individual selected by ▇▇▇▇▇, subject to the good faith approval of the Company, to be elected to the Board of Directors of the Company (the "Board"), if requested by ▇▇▇▇▇. In the event ▇▇▇▇▇ shall not have designated such individual at the time of any meeting of the Board or such person has not been elected or is unavailable to serve, the Company shall notify ▇▇▇▇▇ of each meeting of the Board. An individual selected by ▇▇▇▇▇ shall be permitted to attend all meetings of the Board and to receive all notices and other correspondence and communications sent by the Company to members of the Board. The Company shall reimburse ▇▇▇▇▇'▇ designee for his or her out-of-pocket expenses reasonably incurred in connection with his or her attendance of the Board meetings.
(w) Commencing one yea
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three five (3)-year 5)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as reasonably available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of not less than six (6) months from the effective date of the Registration Statement all officers and directors of the Company holding shares of the Common Stock or securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding will not offer to sell, sell, transfer, hypothecate or otherwise encumber or dispose of any such securities (either pursuant to Rule 144 of the Rules and Regulations or otherwise) without the prior written consent of Josephthal (collectively, the "Lock-up Agreements"). On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. During the six (6) month period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except up to (i) 1,254,444 shares of Common Stock issuable upon exercise of outstanding stock options, (ii) 145,120 shares of Common Stock reserved for future issuance under the Company's 1991 Stock Option Plan and (iii) 635,952 shares of Common Stock issuable upon exercise of outstanding warrants. During the six (6) month period commencing with the effective date of the Registration Statement, the Company shall not file any registration statement with the Securities and Exchange Commission on Form S-8 without the prior written consent of the Representative.
(l) Neither the Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letter to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on Nasdaq or a National Securities exchange and for a period of seven (7) years from the date hereof, and use its best efforts to maintain the Nasdaq quotation or exchange listing of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, but in no event more than 30 days from the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that it will not for a period of thirteen (13) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement permitting the grant, issue or sale of any shares of Common Stock or other securities of the Company (i) in an amount greater than an aggregate of __________ shares of Common Stock, (ii) at an exercise or sale price per share less than the fair market value of the Common Stock on the date of grant or sale, (iii) to any direct or indirect beneficial holder on the date hereof of more than 10% of the issued and outstanding shares of Common Stock, (iv) with the payment for such securities with any form of consideration other than cash, (v) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company.
(t) Until the completion of the distribution of the Shares, and for 25 days thereafter, the Company shall not without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby.
(u) For a period equal to the lesser of (i) seven (7) years from the date hereof, and (ii) the sale to the public of the Representative's Shares, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act of the Representative's Shares.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares shares of Common Stock by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇▇, Mesereau & Leids ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Representatives 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may reasonably request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representatives may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twelve (12) months from the effective date of the Registration Statement, each of the Company's officers, directors and all holders of the Common Stock of the Company or securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of Millennium (collectively, the "Lock-up Agreements"). During the twelve (12) month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Millennium, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. The Company further covenants that it will not file a registration statement with the Commission during the twelve (12) month period commencing on the effective date of the Registration Statement without the prior written consent of Millennium.
(l) None of each of the Company or any subsidiary of the Company, nor any of their respective officers, directors, stockholders, nor any of their affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the dates hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(n) and 6(o) hereof.
(p) The Company shall cause the Common Stock to be listed on Nasdaq/NMS and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the Nasdaq/NMS listing of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's reasonable request and the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that, except as set forth above in Section 4(k) and the 800,000 shares reserved for future issuance under the Company's 1998 Stock Option Plan ("Stock Option Plan"), it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement, permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Common Stock set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Common Stock; (ii) the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options or warrants issued by the Company to exceed such 800,000 shares reserved for future issuance under the Company's Stock Option Plan; (iii) the payment for such securities with any form of consideration other than cash; or (iv) the existence of stock appreciation rights, phantom options or similar arrangements. Furthermore, the Company agrees that for a period of twelve (12) months from the effective date of the Regis
Appears in 1 contract
Sources: Underwriting Agreement (Genesis Media Group Inc /De/)
Covenants and Agreements of the Company. The Company covenants and agrees with the Representative and each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable (such Registration Statement to be in form and will not substance satisfactory to the Representative and Underwriters' Counsel); the Company shall not, at any time, whether before or after the effective date of the Registration StatementEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters of which (i) unless the Company shall have previously advised the Representative shall not previously have been advised and Underwriters' Counsel and furnished the Representative and Underwriters' Counsel with a copy, copies thereof or (ii) to which the Representative shall have objected within two or (2iii) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations, or the Exchange Act.
(b) As soon as the Company is advised or obtains has knowledge thereof, the Company will shall advise the Representative and confirm the by notice in writing, the following: (i) when the date on which the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will are to be relied upon, when ; (ii) the date on which the Prospectus has been is filed in accordance with said Rule 430A and when 430A; (iii) the date on which any post-effective amendment to the Registration Statement becomes effective, ; (iiiv) of the issuance by the Commission of any stop order or of the initiation or the threatening threat of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, ; (iiiv) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, initiation or the threatening, threat of any proceeding for that purpose, ; (ivvi) of the receipt of any comments from the Commission; and (vvii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission or authority of any state shall enter enters a stop order or suspend suspends such qualification at any time, the Company will shall make every effort to obtain secure promptly the lifting of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeRepresentative and Underwriters' Counsel) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4424(b)(47)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration StatementEffective Date.
(d) The Company will shall: (i) give notice to the Representative notice of its intention the Company's intent to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the any Securities which differs from the corresponding prospectus on file at with the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will ; (ii) shall furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof within a reasonable amount of time prior to such proposed filing or use, as the case may be,; and (iii) shall not file any such prospectus to which the Representative or Underwriters' Counsel shall reasonably object.
(e) The Company shall endeavor in good faithtake all action, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effectiveEffective Date, to qualify the Securities Units for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, distribution thereof and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, that the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall will be effected, the Company willshall, unless the Representative agrees that such action is not necessary or advisable at the time necessary or advisabletime, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification. It is agreed that Underwriters' Counsel (or its designees) shall perform all such required Blue Sky legal services.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and amended, or by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Preliminary Prospectus or the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the any Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred occurred, as a result of which, in the reasonable opinion of counsel for to the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the ActAct or any of the Rules and Regulations, the Company will shall notify the Representative 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 satisfactory to Underwriters' Counsel, and the Company will shall furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than 45 days following the 12-month period which begins on the first day immediately following the last day of the fiscal quarter of the Company during which the Effective Date falls (or 90 days in the event that the last day of such fiscal quarter is also the last day of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which shall be in the detail required by, and shall otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months following the Effective Date.
(h) During a period of three (3) seven years after the date hereof, the Company will shall furnish to its stockholdersshareholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will shall deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its shareholders, statements of income of the Company for each quarter in the form furnished to the Company's shareholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its shareholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, shareholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to shareholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, Company or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries of the Company) or its businesses or their business(es) which the Representative may reasonably request. During such three (3)-year seven-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated and shall be accompanied by similar financial statements for any significant subsidiary are which is not so consolidated.
(i) The Company shall maintain a Transfer Agent, counsel, accounting firm, financial printer, a public relations firm and a registrar (which may be the Transfer Agent) for its Units, Shares, Warrants, Warrant Shares and other Securities, all of whom shall be reasonably acceptable to the Representative. Such Transfer Agent shall, for a period of five years following the Closing Date, deliver to the Representative the monthly securities position of the Company's shareholders of record.
(j) The Company shall furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement, any pre-effective or post-effective amendments thereto (two of each shall be signed and include all financial statements and exhibits), the Prospectus and all amendments and supplements thereto, including any Prospectus or prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may reasonably request.
(k) On or before the Effective Date, the Company shall provide the Representative with true and correct copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of not less than 18 months following the Effective Date, each holder of securities issued by the Company and outstanding at the Effective Date of the Registration Statement (excluding the Selling Securityholders' Securities (as defined in the Prospectus, but including all other securities convertible into or exercisable for Shares) agrees that such holder shall not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any of such securities (pursuant to Rule 144 or Regulation S of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Representative (collectively, the "Lock-up Agreements"). The Lock-Up Agreements shall also provide that any Securities that may be sold pursuant to Rule 144 or Regulation S with the Representative's consent shall be executed through the Representative. During the two-year period commencing with the Effective Date, the Company shall not issue any securities under Regulation S and shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any debt security of the Company or any Shares, issue any preferred Stock of the Company or any options, rights or warrants with respect to any shares of preferred stock of the Company or any Shares (other than any Warrant Shares with respect to the Warrants and the Representative's Warrant). On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreement and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, nor any of its officers, directors, shareholders or affiliates (within the meaning of the Rules and Regulations) shall, directly or indirectly, take any action designed to or which might in the future reasonably be expected to cause or result in stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds shall be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act or the Rules and Regulations, and all such reports, forms and documents filed shall comply as to form and substance with the applicable requirements under the Act, the Exchange Act and/or the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Over-Allotment Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Shares, the Shares, the Warrants, the Warrant Shares and the Securities included in the Over-Allotment Units to be listed on the Nasdaq SmallCap Market and the BSE. For a period of seven (7) years from the date hereof, the Company shall use its best efforts to maintain such listings of Securities to the extent any of the same is outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's request and at the Company's sole expense, (i) a list of holders of all of the Company's securities and (ii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) The Company shall, as soon as practicable, but (i) in no event more than five business days prior to the Effective Date, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) in no event more than 30 days after the Effective Date, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ Manual in order to satisfy the requirements for a "manual exemption" in those states where available and to maintain such inclusion for as long as any of the Securities is outstanding.
(s) Until the completion of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases with respect to the Company's operations issued in the ordinary course of the Company's business consistent with past practices.
(t) For a period of three (3) years after the Effective Date, the Representative shall have the right to designate, one (1) individual for election to the Company's Board of Directors (
Appears in 1 contract
Sources: Underwriting Agreement (C W Chemica Waste Technologies)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares and the Redeemable Warrants by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-post- effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Hall ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Securities is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) five years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) copies of such unaudited quarterly reports concurrently with furnishing such quarterly reports to its stockholders, accompanied by a certificate thereon by the Company's principal financial or accounting officer;
(ii) copies of such annual reports concurrently with furnishing such reports to its stockholders;
(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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year five-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and warrant agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements from each of the Company's officers and directors, and all persons or entities who, immediately prior to the declaration of effectiveness of the Registration Statement are (a) holders of 5% or more of the shares of Common Stock; and/or (b) holders of securities exercisable or exchangeable for or convertible into 5% or more of the shares of Common Stock, providing that such persons or entities shall not, directly or indirectly, offer, sell, grant any option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Regulations or otherwise) or dispose of any beneficial interest therein during the Lock-Up Period without the prior written consent of the Representative and the Company (collectively, the "Lock-up Agreements"). During the 12 month period commencing on the effective date of the Registration Statement, the Company shall not sell or offer for sale any of its securities without the prior consent of the Representative, except pursuant to or in connection with (i) the exercise of options granted by the Company under a Plan, (ii) the exercise of non-Plan options and warrants granted by the Company prior to the date hereof and/or (iii) the issuance of shares of Common Stock in transactions involving acquisitions by the Company of the assets or equity ownership of unrelated business entities. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) None of the Company, nor any of its officers, directors, stockholders, nor any of its affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) and 6(k) hereof.
(p) The Company shall cause the Common Stock and Redeemable Warrants to be listed on the ASE and, for a period of five years from the date hereof, use its reasonable best efforts to maintain the ASE listing of the Common Stock and the Redeemable Warrants to the extent outstanding.
(q) As and when reasonably requested by the Representative from time to time during the period of five years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and Redeemable Warrants (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five business days before the effective date of the Registration Statement, the Company shall file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than 30 days after the effective date of the Registration Statement, in the event that the Securities are not listed on a national securities exchange, the Company shall take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than five years.
(s) The Company hereby agrees that it will not, for a period of 12 months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Common Stock; (ii) the maximum number of shares of Common Stock or other securities of the Company issuable under any Plan to exceed, in the aggregate, __________ shares; (iii) the payment for such securities with any form of consideration other than cash; or (iv) the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period equal to the lesser of (i) five years from the date hereof, and (ii) the period ending on the date of sale to the p
Appears in 1 contract
Sources: Underwriting Agreement (Prospect Medical Holdings Inc)
Covenants and Agreements of the Company. (A) The Company covenants and agrees with each of the Underwriters you as follows:
(a) The Company will notify you promptly by telephone and (if requested by you) will confirm such advice in writing, (1) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) if Rule 430A under the Act is used, or the Prospectus is otherwise required to be filed with the Commission pursuant to Rule 424(b) under the Act, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act, (3) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Preliminary Prospectus, the Prospectus, the Registration Statement or any amendment or supplement thereto, or refusing to permit the effectiveness of the Registration Statement ("Stop Order"), or the initiation of any proceedings for any of those purposes, (5) of the happening of any event during the period mentioned in paragraph (f) below which in the reasonable judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading, and (6) of the receipt of any comments from the Commission or the Blue Sky or securities authorities of any jurisdiction regarding the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto. The Company will use its best efforts to prevent the issuance of any Stop Order by the Commission or any notification from the Blue Sky or securities authorities of any jurisdiction suspending the qualification or registration of the Shares for sale in such jurisdictions, and if at any time the Commission shall issue any Stop Order, or if the Blue Sky or securities authorities of any jurisdiction shall issue notification suspending the qualification or registration of the Shares, the Company will make every reasonable effort to obtain the withdrawal of such Stop Order or notification at the earliest possible moment. The Company will promptly advise you of its receipt of any notification with respect to the suspension of the qualification or registration of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any action or proceeding for such purpose.
(b) Prior to any public offering of the Shares by you, the Company will cooperate with you and your counsel in registering or qualifying the Shares for offer or sale under the Blue Sky or securities laws, rules or regulations of such jurisdictions as you may reasonably request; provided that in no event shall the Company be obligated to register or qualify to do business as a foreign corporation in any jurisdiction where it is not now so registered or qualified or to take any action which would subject it to general service of process, or to taxation as a foreign corporation doing business, in any jurisdiction where it is not now so subject. The Company will pay all fees and expenses relating to the registration or qualification of the Shares under such Blue Sky or securities laws of such jurisdictions as you may designate (including the legal fees, expenses and disbursements of counsel to you for the registration or qualification of the Shares in such jurisdictions as you shall determine). After registration, qualification or exemption of the Shares for offer and sale in such jurisdictions, and for as long as any offering pursuant to this Agreement continues, the Company, at your reasonable request, will file and make such statements or reports, and pay the fees applicable thereto, at such times as are or may be required by the laws, rules or regulations of such jurisdictions in order to maintain and continue in full force and effect the registration, qualification or exemption for offer or sale of the Shares in such jurisdictions. After the termination of the offering contemplated hereby, and as long as any of the Shares are outstanding, the Company will file and make, and pay all fees applicable thereto, such statements and reports and renewals of registration as are or may be required by the laws, rules or regulations of such jurisdictions to maintain and continue in full force and effect the registration, qualification or exemption for secondary market transactions in the Shares, in the various jurisdictions in which the Shares were originally registered, qualified or exempted for offer or sale. The Company shall further cause its counsel to provide to HBW at the Effective Date a list to be updated as of the Closing Date and at least annually thereafter for a minimum of three years, of those states in which the Company's securities may be traded in non-issuer transactions under the Blue Sky laws of the 50 states; provided, that your counsel shall issue the initial opinion for a fee of $5,000 if the Company so desires.
(c) The Company will furnish to you, without charge, four manually-signed copies of the Registration Statement as originally filed on Form SB-2 and of any amendments (including post-effective amendments thereto), including financial statements and schedules, if any, and all consents, certificates and exhibits (including those incorporated therein by reference to the extent not previously furnished to you), heretofore or hereafter made, signed by or on behalf of its officers whose signatures are required thereon and a majority of its board of directors.
(d) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with under the Commission as promptly as practicable Act. Upon such effectiveness, if the Company and you have determined not to proceed pursuant to Rule 430A under the Act, the Company will not at timely file a Prospectus pursuant to, and in conformity with, Rule 424(b), if required, and if the Company and you have determined to proceed pursuant to Rule 430A under the Act, the Company will timely file a Prospectus pursuant to, and in conformity with, Rules 424(b) and 430A under the Act.
(e) The Company will give you and your counsel advance notice of its intention to file any timeamendment to the Registration Statement or any amendment or supplement to the Prospectus, whether before or after the effective date of the Registration Statement, and will not file any such amendment to or supplement unless the Registration Statement Company shall have first delivered copies of such amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised you and furnished with a copy, or to which the Representative your counsel and you and your counsel shall have objected within two (2) business days after its receipt thereof given your consent to the filing of such amendment or which is not in compliance supplement. Any such amendment or supplement shall comply with the Act, the Exchange Act or the Rules and Regulations.
(bf) As soon as From and after the Company is advised or obtains knowledge thereofEffective Date, the Company will advise the Representative and confirm the notice in writingdeliver to you, (i) when the Registration Statementwithout charge, as amended, becomes effective with the Commission and, if the provisions many copies 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 post-effective amendment to the Registration Statement becomes 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or thereto as you may reasonably request. The Company consents to the institution of proceedings for that purpose, (iii) use of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any timeShares may be sold, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters both in connection with the offering or sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required law to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretoconnection therewith. If at any during such period of time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, occur which in the opinion judgment of you or your counsel for should be set forth in the Company or Underwriters' Counsel, 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 Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Actlaw, the Company will notify the Representative promptly and forthwith prepare and duly file with the Commission an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish deliver to the Underwriters each of you, without charge, such number of copies of such amendment or supplement thereof as soon as available and in such quantities as the Underwriters you may reasonably request.
(g) During The Company will promptly pay all expenses in connection with (1) the preparation, printing, filing, distribution and mailing (including, without limitation, express delivery service) of the Registration Statement, each preliminary prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (if any); (2) the issuance and delivery of the Shares; (3) the fees and expenses of legal counsel and independent accountants for the Company relating to, among other things, opinions of counsel, audits, review of unaudited financial statements and cold comfort review; (4) the fees and expenses of a registrar or transfer agent for the Common Stock; (5) the printing, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Agreement Among Underwriters, if any, and the Selected Dealers Agreement; (6) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by you or by dealers to whom Shares may be sold; (7) any fees and communication expenses with respect to filings required to be made by you with the National Association of Securities Dealers Regulation, Inc. (the "NASDR"); and (8) the quotation of the Shares on Nasdaq Stock Market ("NASDAQ"); (9) tombstone advertisements (not to exceed $10,000) and lucite cubes for the offering; and (10) costs of "road shows", if any (with respect to such road shows, each party shall pay its own travel expenses and the Company will pay all other costs associated with holding such shows including expenses in connection with any meetings or presentations).
(h) On the Closing Date, the Company shall sell to you, the Underwriters' Warrant to purchase 130,000 Shares for an aggregate purchase price of $10.
(i) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than by notice given by you pursuant to Section 8 hereof or pursuant to Section 9) or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse you for all of your out-of-pocket expenses (including the fees and expenses of your counsel) reasonably incurred by you in connection herewith.
(j) For a period of three one (1) year after the commencement of the public offering of the Shares by you, without HBW's prior written consent, the Company will not:
(1) offer, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company, except as provided for and as contemplated by this Agreement, as specifically disclosed in the Registration Statement respecting certain post-offering issuances to Company employees and holders of warrants, or for stock options and stock awards granted to employees pursuant to the Company's Equity Incentive Plan attached as an exhibit to the Registration Statement, or as otherwise contemplated by the Letter of Intent; or
(2) redeem any of its securities outstanding as of the closing date of the Public Offering, or pay any dividends or make any other cash distribution in respect of its securities in excess of the amount of the Company's current or retained earnings after the closing date of the Public Offering. HBW shall either approve or disapprove any such contemplated stock redemption or dividend or distribution within five business days after the date HBW receives written notice of the proposed action.
(k) On or prior to the Closing Date, the Company shall obtain:
(1) from each of its officers and directors, his or her enforceable written agreement, in form and substance satisfactory to your counsel, that for a period of twenty-four (24) months after the Effective Date (or any longer period required by any jurisdiction in which the offer and sale of the Shares is to be registered or qualified);
(3) from each of other shareholders, his or her enforceable written agreement, in form and substance satisfactory to your counsel, that for a period of twelve (12) months after the Effective Date (or any longer period required by any jurisdiction in which the offer and sale of the Shares is to be registered or qualified) that he or she will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company (including without limitation any shares of Common Stock), owned by him or her as of the Closing Date, whether upon exercise of warrants, stock options or otherwise, without HBW's prior written consent (the "Lock-up Letter"). An appropriate legend shall be marked on the face of stock certificates representing all of such shares of capital stock prior to the Effective Date, as well as a stop order being issued to the Company's transfer agent. Notwithstanding the foregoing, the Company's directors, officers and existing stockholders may make gifts and intrafamily transfer of the Common Stock provided such transferees agree to be bound by the terms of this restriction on transfer.
(l) The Company has reserved and shall continue to reserve and keep available the maximum number of shares of its authorized but unissued Common Stock and other securities for issuance upon exercise of the Underwriters' Warrant.
(m) For a period of five years after the date hereofof this Agreement, the Company will furnish shall:
(1) retain Amper, Politziner & ▇▇▇▇▇▇ P.A. or another regionally recognized firm of independent public accountants, as its auditors, and at its own expense, shall cause such independent certified public accountants to review the Company's financial statements for each of the first three fiscal quarters of each fiscal year prior to the announcement of quarterly financial information, the filing of the Company's 10-Q quarterly reports and the mailing of quarterly financial information to its stockholdersshareholders;
(2) cause the Company's Board of Directors to meet not less frequently than quarterly, upon proper notice, and cause an agenda and minutes of the preceding meeting to be distributed to directors prior to each such meeting;
(3) distribute to its security holders, within 120 days after the end of each fiscal year, an annual report (containing certified financial statements of the Company) prepared in accordance with those required under Rule 14a-3(b) of Regulation 14A promulgated by the Commission under the Securities Exchange Act of 1934, as amended; and
(4) appoint a transfer agent for the Common Stock, in each case acceptable to you.
(n) For a period of five years after the date of this Agreement, the Company shall furnish you, free of charge, with the following:
(1) within 90 days after the end of each fiscal year, financial statements for the Company certified by the independent certified public accountants referred to in Section 4(m)(1) above, including a balance sheet, statement of operations, statement of shareholders' equity and statement of cash flows, for the Company, with supporting schedules, prepared in accordance with generally accepted accounting principles, as at the end of such fiscal year and for the twelve months then ended, accompanied by a copy of the certificate or report thereon of such independent certified public accountants;
(2) (x) for so long as the Company is a reporting company under any of Sections 12(b), 12(g) or 15(d) of the Securities Exchange Act, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the "Exchange Act"), promptly after filing with the Commission, copies of all reports and proxy soliciting material which the Company is required to file under the Exchange Act, or (y) at such times as the Company is not a reporting company under the aforesaid provisions of the Exchange Act, as soon as practicablepracticable after the end of each of the first three fiscal quarters of each fiscal year, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, including a balance sheet, statement of operations, statement of shareholders' equity and statement of cash flows as at the end of, or its affairs for each such fiscal quarter and the comparable period of the preceding year, which was released or prepared by or on behalf statements need not be audited;
(3) as soon as practicable after they have first been distributed to shareholders of the Company; and
(ii) any additional information , copies of a public nature concerning the Company (each annual and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.interim finan
Appears in 1 contract
Sources: Underwriting Agreement (Stratus Services Group Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best commercially reasonable efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its commercially reasonable efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its commercially reasonable efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives is necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Shares and will make every effort use its commercially reasonable efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, Securities Act any event shall have occurred relating to or affecting the Company or any of its Subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission and file such document with the Commission; and in case any Underwriter is required to deliver a prospectus relating to the Shares nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-Effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Shares is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented, as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Shares to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Shares for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Shares) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Shares to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Shares. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and, in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the ActRepresentatives, each such amendment or supplement use its commercially reasonable efforts to be satisfactory to Underwriters' Counsel, and obtain the withdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants in accordance with the Underwriters copies of such amendment or supplement as soon as available Rules and in such quantities Regulations. So long as the Underwriters may requestCompany has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its Subsidiaries are consolidated in reports furnished to its stockholders generally, to the extent required by the Rules and Regulations.
(gh) The Company will use its commercially reasonable efforts to cause the Common Stock to be listed for quotation on the Nasdaq National Market at or before the time of purchase.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock during the one hundred and eighty (180) days following the Effective Date, other than the (i) Company’s sale of Common Stock hereunder, (ii) the issuance of Common Stock upon the automatic conversion, as a result of the offering and sale of the Shares, of the Company’s outstanding convertible preferred stock as described in the Prospectus, (iii) the issuance of Common Stock upon the exercise of stock options which are presently outstanding and described in the Prospectus, (iv) the grant of options to purchase shares of Common Stock under the stock option plan described in the Prospectus, (v) the issuance of Common Stock in connection with the acquisition of any businesses, assets or technologies, and (vi) the Representatives’ Warrants and the shares issuable upon the exercise of the Representatives’ Warrants.
(j) The Company will apply the net proceeds from the sale of the Shares as set forth in the description under “Use of Proceeds” in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Shares under the Securities Act.
(l) Upon the successful closing of the offering of the Shares and the fulfillment of the terms of the Underwriting Agreement by Representatives, the Company, on the First Closing Date, shall sell to each Representative or to such Representative’s Designee, as the case may be, a Representatives’ Warrant according to the terms specified in Section 3 hereof. The Company has reserved and shall continue to reserve a sufficient number of shares of Common Stock for issuance upon exercise of each such Representatives’ Warrant.
(m) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants)National, and to each report on Form 10-KSB (or 10-KUnderwriter who may so request in writing, as copies of all periodic and special reports furnished to stockholders of the case may be)Company and of all information, including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as documents and reports filed with the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:Commission.
(in) every press release and every material news item or article The Company will maintain a transfer agent and, if necessary under the jurisdiction of interest to the financial community in respect incorporation of the Company, or a registrar (which may be the same entity as the transfer agent) for its affairs which was released or prepared by or on behalf of the Company; andCommon Stock.
(iio) any additional information During the period of a public nature concerning three years after the date hereof, the Company will timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the Rules and Regulations, the Exchange Act and the rules and regulations promulgated thereunder, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Securities Act, the Rules and Regulations, the Exchange Act and the rules and regulations promulgated thereunder.
(p) To comply with all applicable securities and any future subsidiary) or its businesses other applicable laws, rules and regulations in each jurisdiction in which the Representative may Directed Shares are offered in connection with the Directed Share Program.
(q) The Company will endeavor to qualify the shares for offer and sale under the securities or blue sky laws of such jurisdictions as National shall reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Sources: Underwriting Agreement (Marchex Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by event that comes to the Commission for attention of the Company that makes any amendment to statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to by in the judgment of the Company or the Representative, pursuant to Rule 424(b)(4)) not later than be required by the Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Shares.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act. Any report, each communication or financial statement furnished or filed with the Commission that is publicly available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“▇▇▇▇▇”) shall be deemed to have been furnished to such amendment security holders at the time furnished or supplement to be satisfactory to Underwriters' Counsel, and filed with 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 requestCommission.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“Nasdaq”) or any national securities exchange and (ii) from time to time such report other information concerning the Company as you may reasonably request, provided the Company will be deemed to have furnished such reports to you and the other Underwriters to the Representative and will deliver extent they are filed on the Commission’s ▇▇▇▇▇ or any successor system.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, then (A) prior to the Representative:Closing Date, in addition to the payment of amounts in accordance with Section 7, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including documented travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you pursuant to this Agreement in connection with the proposed purchase of the Firm Shares; and (B) after the Closing Date but prior to any Additional Closing Date with respect to the purchase of any Optional Shares pursuant to a notice delivered by the Underwriters to the Company as provided in this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including documented travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably and actually incurred by you following the Closing Date pursuant to this Agreement in connection with the proposed purchase of such Additional Shares; provided that if this Agreement is terminated pursuant to Section 11 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of expenses to the extent incurred by such defaulting Underwriter; provided further that the foregoing shall not limit any reimbursement obligation of the Company to any non-defaulting Underwriter under this Section 5(l).
(im) every press release The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and every material news item ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or article indirectly, (1) offer for sale, sell, pledge or otherwise dispose of interest (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the financial community in respect registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the CompanyCompany or (4) publicly disclose the intention to do any of the foregoing, or its affairs which was released or prepared by or in each case without the prior written consent of the Representative on behalf of the Company; and
Underwriters. Notwithstanding the foregoing, the Company may (i) sell the Shares to the Underwriters, (ii) issue shares of Common Stock upon exercise, conversion, or exchange of options or other securities convertible or exercisable for shares of Common Stock outstanding on the date hereof, (iii) file one or more registrations statements registering the secondary sale of shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock, (iv) issue shares of Common Stock, options to purchase shares of Common Stock or restricted stock units or similar equity securities pursuant to any additional information stock option, stock bonus or other stock plan or arrangement described in the Registration Statement or Prospectus, (v) issue shares of a public nature concerning Common Stock, options, restricted stock units or similar equity securities to the Company’s directors as compensation for their services as directors, (vi) enter into agreements providing for the issuance by the Company (and of shares of Common Stock or any future subsidiary) security convertible into or its businesses which exchangeable or exercisable for shares of Common Stock in connection with the Representative may request. During such three (3)-year period, if acquisition by the Company has or any of its subsidiaries of the securities, business, property or other assets of another person or entity (including pursuant to an active subsidiaryemployee benefit plan assumed by the Company in connection with such acquisition), and issue any such securities pursuant to any such agreement, and (vii) enter into agreements providing for the issuance of shares of Common Stock or any security convertible into or exercisable for shares of Common Stock in connection with joint ventures, commercial relationships, debt financing or other strategic transactions, and issue any such securities pursuant to any such agreements; provided that in the case of clauses (vi) and (vii), the foregoing financial statements will be on a consolidated basis to the extent aggregate number of shares of Common Stock that the accounts Company may sell or issue or agree to sell or issue pursuant to clauses (vi) and (vii), taken together, shall not exceed 2.5% of the Company and its subsidiary are consolidated.total number of shares of Common Stock i
Appears in 1 contract
Sources: Underwriting Agreement (Catalyst Biosciences, Inc.)
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration StatementEffective Date, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act Act, before termination of the offering of the Preferred Shares by the Underwriters Underwriters, of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have reasonably objected within two (2) business days after its receipt thereof based on such amendment or which is supplement not being in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative and confirm the notice Representatives promptly after having knowledge thereof, in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order order, or of the initiation or the threatening threat of the initiation, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threateningthreat of the initiation, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to promptly obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance reasonably satisfactory to the RepresentativeRepresentatives) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission Commission, pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeRepresentatives, pursuant to Rule 424(b)(4)) ), not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementEffective Date.
(d) The Company will give the Representative Representatives notice of its intention to file or to prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities Shares which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representatives or Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Underwriters' Counsel"), shall object based on such amendment or supplement not being in compliance with the Act or the Regulations.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeRepresentatives, at or prior to the time the Registration Statement becomes effectiveEffective Date, to qualify the Securities Shares for offering and sale under the securities laws of such jurisdictions as the Representative Representatives may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be -------- ------- required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Representatives agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities Shares in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Representatives promptly and will 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 satisfactory to Underwriters' Counsel, Act and the Section 4(a) hereof. The Company will also furnish to the ------- Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may reasonably request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which ------- statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the Effective Date.
(h) During a period ending on the earlier of three (3i) five (5) years after the date hereofhereof and (ii) the date when the Company no longer has a class of equity securities registered under the Exchange Act, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the RepresentativeRepresentatives:
(i) financial statements of the Company for each quarter, in the form filed with the Commission;
(ii) concurrently with furnishing the above-mentioned annual reports to its stockholders, 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf at the direction of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Representatives may reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are required to be consolidated in accordance with Regulation S-X, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent (the "Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock for so long as the Company has a class of equity securities registered under the Exchange Act.
(j) The Company will furnish to the Representatives or on the Representatives' order, without charge, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two (2) of such copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus related to the offering of the Shares prepared after the Effective Date, in each case as soon as available and in such quantities as the Representatives may request.
(k) On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. During the twelve (12) month period commencing on the Effective Date, the Company shall not, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except up to (i) 772,287 shares of Common Stock reserved for grants of options under the Company's stock option plans as described in the Prospectus or (ii) shares of Common Stock issued and sold pursuant to an acquisition of another entity so long as such shares of Common Stock issued and sold by the Company are also subject to the restrictions set forth in the Lock- up Agreements. The Company will cause the Transfer Agent to place "stop transfer" orders on the Company's stock ledgers. During the twelve (12) month period commencing with the Effective Date, the Company shall not file any registration statement with the Commission on Form S-8 without the prior written consent of ▇▇▇▇▇▇▇▇▇▇.
(l) Neither the Company nor any of its officers, directors or stockholders, nor any of their respective affiliates or Associates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Shares in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall use its best efforts to timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents, when filed, will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representatives, as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letter to be furnished pursuant to Section 6(j) hereof. -------
(p) The Company shall use its best efforts to cause the Common Stock to be quoted on Nasdaq or a national securities exchange for a period of seven (7) years from the date hereof, and shall use its best efforts to maintain the Nasdaq quotation or exchange listing of the Common Stock to the extent outstanding.
(q) For a period of three (3) years from the Closing Date, on a quarterly basis, the Company shall instruct the Transfer Agent to furnish to the Representatives, at the Company's sole expense, the list of holders of all of the Company's securities and a list of Depository Trust Company "participant holders."
(r) The Company hereby agrees, as soon as practicable, but in no event more than thirty (30) days from the Effective Date, to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion until the earlier of (i) seven (7) years from the Effective Date and (ii) the first date when the Company no longer has a class of equity securities registered under the Exchange Act.
(s) The Company hereby agrees that, for a period of thirteen (13) months from the Effective Date, it will not, without the written consent of the Representatives, which consent will not be unreasonably withheld, and (A) the written consent of a majority of the Company's stockholders who are not affiliates of the Company at such time or (B) the vote of a majority of such non-affiliate stockholders, voting at a duly held stockholder's meeting, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plans or arrangements permitting the grant, issue or sale of any shares of Common Stock or other securities of the Company (i) in an aggregate amount for all such plans or arrangements of greater than 1,351,923 shares of Common Stock, (ii) at an exercise or sale price per share less than the higher of (A) the fair market value of the Common Stock on the date of grant or sale and (B) the initial public offering price (provided; however, if granted -------- ------- to any new senior officer hired by the Company after the date hereof, then at an exercise or sale price per share less than the fair market value of the Common Stock on the date of grant or sale) and (iii) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company.
(t) Until the completion of the distribution of the Shares, and for twenty (25) days thereafter, except to the extent required to do so by applicable law or the Regulations, the Company shall not, without the prior written consent of the Representatives and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby.
(u) Until the earlier of (i) seven (7) years from the date hereof, (ii) the sale to the public of the Representatives' Shares and (iii) the first date in which the Company no longer has a class of equity securities registered under the Exchange Act, the Company will use reasonable efforts not to take
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective Registration Statement and any amendments thereto to become effective with the Commission 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 and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(d) below, of any request by 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 made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 for 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. If the Company elects, with the consent of the Underwriter, to rely on Rule 434 under the Act, the Company will provide the Underwriter with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriter may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the second business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriter with copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the second day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicates of signed originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If the Commission supplement and (ii) you have not reasonably objected to such filing, amendment or the state securities commission authority of any state shall enter supplement, after being so advised, in writing, and having been given a stop order reasonable opportunity to review such filing, amendment or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordersupplement.
(cd) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after “Prospectus Delivery Period”), and for so long a period as you may reasonably request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give the Representative notice of its intention to file or prepare any amendment deliver to the Registration Statement Underwriter and each dealer, without charge, as many copies of the Prospectus (including any post-effective amendment) or and of any amendment or supplement thereto) as it may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use Shares are offered by the Underwriters Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriter is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(b) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(e) The Company will cooperate with you and your counsel for the registration or supplement in accordance with Section 10 qualification of the ActShares for offer and sale by the Underwriter under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, each such amendment other than those arising out of the offering or supplement to be satisfactory to Underwriters' Counselsale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the Company is notified that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(f) As soon as practicable, the Company will furnish make generally available to its security holders and the Underwriters copies Underwriter a consolidated earnings statement of such amendment or supplement as soon as available the Company and in such quantities as its subsidiaries that will satisfy the Underwriters may requestprovisions of Section 11(a) of the Act and Rule 158 under the Act.
(g) During a the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(h) During the period of ending three (3) years after from the date hereof, if not otherwise available on ▇▇▇▇▇, the Company will promptly furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver you a copy of each such proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Representative and will deliver to Commission, the Representative:National Association of Securities Dealers, Inc. (the “NASD”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange.
(i) every press release If this Agreement shall terminate or shall be terminated after execution pursuant to clauses (iv) or (v) of Section 11 hereof, or if this Agreement shall be terminated by the Underwriter because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including travel expenses and every reasonable fees and expenses of counsel for the Underwriter, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material news item respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or article term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) For a period of interest 60 days after the date of this Agreement, without your prior written consent, the Company will not, (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, “Company Securities”) or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, except (A) to the financial community Underwriter pursuant to this Agreement, (B) for grants of options or shares of common stock pursuant to the Company’s stock option, stock bonus or other stock plans or arrangements in respect effect as of the date hereof and described in the Prospectus, (C) for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans, or (D) for shares of Common Stock issuable upon conversion of the Company’s Series A Mandatory Convertible Preferred Stock.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) The Company will not at any time, directly or indirectly, take any action designed, or its affairs which was released might reasonably be expected to cause or prepared by result in, or on behalf which will constitute, stabilization or manipulation of the Company; andprice of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(iio) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(p) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses national securities exchange on which the Representative may request. During such three Common Stock is listed, a registrar (3)-year periodwhich, if permitted by applicable laws and rules may be the Company has an active subsidiary, same entity as the foregoing financial statements will be on a consolidated basis to transfer agent) for the extent that the accounts of the Company and its subsidiary are consolidatedCommon Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each the Agents participating in the offering of the Underwriters as followsNotes that:
(a) The Company shall use its best efforts to cause will notify the Registration Statement Agents immediately, and any amendments thereto to become effective with confirm such notice in writing, of (i) the Commission as promptly as practicable and will not at any time, whether before or after the effective date effectiveness of the Registration Statement, file any amendment to the Registration Statement Statement, (ii) the transmittal to the Commission for filing of any amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment pursuant to the Registration Statement becomes effective1934 Act (other than any amendment, (ii) of supplement or document relating solely to securities other than 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purposeNotes), (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and Commission with respect to the Registration Statement or the Prospectus, (viv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If , (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the state securities commission authority initiation of any state shall enter a stop order proceedings for that purpose and (vi) any change in the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company or suspend such qualification at the public announcement by any timenationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain promptly the lifting of such orderthereof at the earliest possible moment.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(db) The Company will give the Representative Agents advance notice of its intention to file or prepare any additional registration statement with respect to the registration of additional Notes, any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which other than an amendment or supplement providing solely for a change in the Company proposes for use interest rate or formula applicable to the Notes or a change relating solely to securities other than the Notes), whether by the Underwriters in connection with the offering filing of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed documents pursuant to Rule 424(b) of the Rules and Regulations)1934 Act or the 1933 Act or otherwise, and will furnish to the Representative with Agents copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior or other documents proposed to be filed or used a reasonable time in advance of such proposed filing or use, as the case may be,, and will not file any such amendment or supplement or other documents in a form to which the Agents or counsel for the Agents shall reasonably object.
(c) The Company will deliver to the Agent as many signed and conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Agents reasonably request. The Company will furnish to the Agents as many copies of the Prospectus (as amended or supplemented) as the Agents reasonably request so long as the Agents are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Notes.
(d) The Company will prepare, with respect to any Notes to be sold to or through one or more Agents pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by the Agents and will file such Pricing Supplement pursuant to Rule 424(b) under the 1933 Act not later than the close of business of the Commission on the first business day after the date on which such Pricing Supplement is first used.
(e) The Company shall endeavor Except as otherwise provided in good faithsubsection (l) of this Section 5, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to during the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, term of this Agreement any event shall have occurred occur or condition exist as a result of whichwhich it is necessary, in the opinion of counsel for the Company Agents or Underwriters' Counselcounsel for the Company, to amend or supplement the Prospectus, as then amended or supplemented, includes Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time the Prospectus is delivered to a purchaser, or if it is necessary at any time shall be necessary, in the opinion of either such counsel, to amend or supplement the Registration Statement or the Prospectus in order to comply with the Actrequirements of the 1933 Act or the 1933 Act Regulations, the Company will notify shall give immediate notice, confirmed in writing, to the Representative promptly Agents to cease the solicitation of offers to purchase the Notes in an Agent's capacity as agent and prepare and file with the Commission to cease sales of any Notes an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' CounselAgent may then own as principal, and the Company will furnish promptly amend the Registration Statement and the Prospectus, whether by filing documents pursuant to the Underwriters copies 1934 Act or the 1933 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements.
(f) Except as otherwise provided in subsection (l) of this Section 5, on or prior to the date on which there shall be released to the general public interim financial statement information related to the Company with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, the Company shall furnish such amendment information to the Agents, confirmed in writing, and shall cause the Prospectus to be amended or supplement supplemented to include or incorporate by reference financial information with respect thereto and corresponding information for the comparable period of the preceding fiscal year, as soon well as available such other information and in such quantities explanations as shall be necessary for an understanding thereof or as shall be required by the Underwriters may request1933 Act or the 1933 Act Regulations.
(g) During a period Except as otherwise provided in subsection (l) of three (3) years after this Section 5, on or prior to the date hereofon which there shall be released to the general public financial information included in or derived from the audited financial statements of the Company for the preceding fiscal year, the Company shall furnish such information to the Agents, confirmed in writing, and shall cause the Registration Statement and the Prospectus to be amended, whether by the filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise, to include or incorporate by reference such audited financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent accountants with respect thereto, as well as such other information and explanations as shall be necessary for an understanding of such financial statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) The Company will furnish make generally available to its stockholders, security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering each annual report twelve month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (including financial statements audited by independent public accountants), and as defined in such Rule 158) of the Registration Statement with respect to each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy sale of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:Notes.
(i) every press release The Company will endeavor, in cooperation with the Agents, to qualify the Notes for offering and every material news item sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Agents may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Notes; PROVIDED, HOWEVER, that the Company shall not be obligated to file any general consent to service of process or article to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Company will file such statements and reports as may be required by the laws of interest each jurisdiction in which the Notes have been qualified as above provided. The Company will promptly advise the Agents of the receipt by the Company of any notification with respect to the financial community in respect suspension of the qualification of the Notes for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
(j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or its affairs which was released or prepared by or on behalf the 1934 Act in connection with sales of the Company; andNotes, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) If specified by the applicable Agent or Agents in connection with a purchase of Notes as principal, between the date of the agreement to purchase such Notes and the Settlement Date with respect to such purchase, the Company will not, without the prior written consent of such Agent or Agents, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company (other than the Notes that are to be sold pursuant to such agreement and commercial paper in the ordinary course of business).
(l) The Company shall not be required to comply with the provisions of subsections (e), (f) or (g) of this Section 5 for any period during which (i) the Agents have not agreed with the Company to solicit purchases of Notes in accordance with Section 2(d) or have suspended such solicitation and (ii) no Agent is holding any additional information of a public nature concerning Notes purchased as principal pursuant hereto, until the time the Agents have agreed with the Company (and any future subsidiaryto solicit such purchases of the Notes or have resumed solicitation in accordance with Section 2(d) or its businesses which the Representative may request. During such three (3)-year period, if an Agent shall subsequently purchase Notes from the Company has an active subsidiaryas principal.
(m) The Company will use its best efforts to meet the requirements to qualify as a REIT under the Internal Revenue Code of 1986, as amended (the foregoing financial statements will be on a consolidated basis to "Code") for the extent that the accounts taxable year in which sales of the Company and its subsidiary Notes are consolidatedto occur, unless otherwise specified in the Prospectus.
Appears in 1 contract
Sources: Distribution Agreement (Associated Estates Realty Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Securities to the public by the Underwriters of which the Representative Underwriters shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriters and confirm the notice same in writing, (i) when the Registration Statement, as amended, becomes effective, when any post-effective with amendment to the Commission Registration Statement 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 post-effective amendment to the Registration Statement becomes effective430A, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the outcome of which may result in the suspension of the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of any 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriters) with the Commission, or transmit the Prospectus by a means reasonably calculated to result in filing the same with the Commission Commission, pursuant to Rule 424(b)(1) of the Rules and Regulations (or, if applicable and if consented to by the Underwriters, pursuant to Rule 424(b)(4) of the Rules and Regulations) within the time period specified in Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement).
(d) The Company will give the Representative Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of any of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such amendment or supplement to which the Underwriters or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, its counsel ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriters may reasonably designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distributiondistribution contemplated hereby, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Exchange Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, Regulations so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If If, at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the RepresentativeUnderwriters:
i) unaudited quarterly reports of earnings as certified by the Company's principal financial and accounting officer;
ii) concurrently with furnishing such annual reports to its stockholders, 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 the Company's independent certified public accountants;
iii) as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its respective affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses respective business which the Representative Underwriters may request. During such three (3)-year five-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock.
(j) The Company will furnish to the Underwriters, without charge and at such place as the Underwriters may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (one of which will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Underwriters with originally executed copies of duly executed, legally binding and enforceable Lock-Up Agreements, which are in form and substance satisfactory to the Underwriters. On or before the Closing Date, the Company shall deliver instructions to its transfer agent authorizing such transfer agent to place appropriate legends on the certificates representing the securities of the Company subject to the Lock-Up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company agrees that, for the duration of the Lock-Up Period (as defined in SECTION 1(w), it and its future subsidiaries will not, without the prior written consent of JSC (i) issue, sell, contract or offer to sell, grant an option for the purchase or sale of, assign, transfer, pledge, hypothecate, distribute or otherwise dispose of, directly or indirectly, any shares of capital stock or any option, right or warrant with respect to any shares of capital stock or any security convertible, exchangeable or exercisable for capital stock, provided, that the Company may, without consent of JSC, issue securities (a) upon the exercise of any outstanding stock options or warrants granted or issued on or prior to the date hereof, and (b) subject to the terms of Section 4(u) of this Agreement, up to an additional 116,283 shares of Common Stock issuable upon the exercise stock options which may be granted pursuant to the Company's 1997 Stock Option Plan, or (ii) file any registration statement for the offer or sale of securities issued or to be issued by the Company or any present or future subsidiaries.
(m) Neither the Company nor any of its officers or directors will take, directly or indirectly, any action designed to stabilize or manipulate the price of any securities of the Company, or which might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any such securities.
(n) The Company shall apply the net proceeds from the sale of the Securities offered to the public in the manner set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(o) The Company shall timely file all such reports, forms or other documents as may be required from time to time under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents will comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(p) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date hereof, the Closing Date or the relevant Option Closing Date, as the case may be) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to SECTION 6(j) hereof.
(q) The Company shall cause the Common Stock to be quoted on the Nasdaq SmallCap Market and, for a period of five (5) years from the date hereof, use its best efforts to maintain quotation of the Common Stock to the extent outstanding on the Nasdaq SmallCap Market or the Nasdaq National Market.
(r) For a period of three (3) years from the Closing Date, the Company shall at the request of the Underwriters, furnish or cause to be furnished to the Underwriters and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and (ii) a list of holders of all of the Company's securities.
(s) For a period of three (3) years from the Closing Date, the Company shall, at the Company's sole expense, (i) promptly provide the Underwriters, upon any and all requests of the Underwriters, with a "blue sky trading survey" for secondary sales of the Company's securities, prepared by counsel to the Company, and (ii) take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the "blue sky" laws of those jurisdictions, provided that such jurisdictions do not require the Company to qualify as a foreign corporation.
(t) As soon as practicable, but in no event more than thirty (30) days after the effective date of the Registration Statement, the Company agrees to take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than three (3) years.
(u) Without the prior written consent of JSC, the Company hereby agrees that it will not, for the duration of the Lock-Up Period, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement (i) permitting the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (a) at an exercise or sale price per share that is less than the greater of the initial public offering price of the Shares set forth herein or the fair market value per share of the Common Stock on the date of grant or sale, or (b) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company on the date of grant or issuance; or (ii) permitting the existence of stock appreciation rights, phantom options or similar arrangements; or (iii) permitting the payment for such securities with any form of consideration other than cash; or (iv) permitting the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options, warrants or other contract rights to exceed 545,000 (excluding the Underwriters' Warrants, the 100,000 warrants issued to the Bridge Investors and the Underwriters' Option to purchase 230,000 shares to cover-allotments, if any); or (v) to any direct or indirect beneficial holder on the date hereof of more than 10% of the issued and outstanding shares of Common Stock.
(v) Until the completion of the distribution of the Securities to the public, and during any period during which a prospectus is required to be delivered, the Company shall not
Appears in 1 contract
Sources: Underwriting Agreement (Cumetrix Data Systems Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Acts or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the ActActs, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A 497 promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A 497 and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) 497 not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) 497 of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Reid & Priest LLP ("Under▇▇▇▇ers' Counsel"), shall reasonably object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the ActActs, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act Acts and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the ActActs, any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the ActActs and the Rules and Regulations, the Company will notify the Representative 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 satisfactory to 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 request.
(g) As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeRepresentatives:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, Company or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses which the Representative may reasonably request. During such three (3)-year seven-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will retain counsel, an accounting firm, and financial printer and maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock, all of whom shall be reasonably acceptable to the Representatives.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any Prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representatives may reasonably request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representatives with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of 18 months from the effective date of the Registration Statement, each of the Principal Stockholders agrees that he, she or it, as the case may be, will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Representative (collectively, the "Lock-up Agreements"). During the two year period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, other than as contemplated by the Registration Statement. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreement and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, nor any of its officers, directors, stockholders or affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, the 1940 Act, the Advisers Act and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, the Advisers Act, the 1940 Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representatives as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Securities to be listed on NASDAQ and, for a period of seven (7) years from the date hereof, use its best efforts to maintain NASDAQ quotation of the Securities to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representatives at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than 30 days from the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Moody's Manual and to us▇ ▇▇▇ ▇est efforts to continue such inclusion for as long as the securities are outstanding.
(s) Until the completion of the distribution of the Securities, the Company shall not without the prior written consent of the Representatives and Underwriters' Counsel, issue, directly or indirectly any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(t) For a period of two (2) years after the effective date of the Registration Statement, Suppes shall have the rig▇▇ ▇▇ designate, subject to any approval required to be obtained from the United States Small Business Administration (the "SBA"), one (1) individual for election to the Company's Board of Directors ("Board") and the Company shall use its best efforts to elect any individual so designated to the Board. The Company shall provide its outside Directors with compensation on a par to its existing Directors in the form of cash on its Common Stock as deemed appropriate and customary for similar companies. In the event Suppes shall not have des▇▇▇▇▇▇d such individual at the time of any meeting of the Board or such person is unavailable to serve, the Company shall notify Suppes of each meeting ▇▇ ▇▇▇ Board and an individual designated by Suppes shall be permitted ▇▇ ▇▇tend all meetings of the Board and to receive all notices and other correspondence and communications sent by the Company to members of the Board. Such individual shall be reimbursed for all out-of-pocket expenses incurred in connection with his or her service on, or attendance at meetings of, the Board.
(u) For a period of two (2) years after the effective date of the Registration Statement, Suppes, individually an▇ ▇▇▇ in its capacity as Representative, shall have a preferenti
Appears in 1 contract
Sources: Underwriting Agreement (Freshstart Venture Capital Corp)
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the several Underwriters as followsthat:
(a) The Company shall will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to cause prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of any request by the Commission for any amendment of or supplement to the Registration Statement and any amendments thereto to become effective with or the Commission as promptly as practicable Prospectus or for addi tional information, and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing or use thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange 1933 Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the . The Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, Representatives promptly when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,.
(eb) The Company shall endeavor in good faith, in cooperation will prepare and file with the RepresentativeCommission, at promptly upon the request of the Representatives, any amendments or prior supplements to the time the Registration Statement becomes effective, to qualify or the Securities for offering and sale under Prospectus which in the securities laws opinion of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as Representatives may be necessary to complete enable the distributionseveral Underwriters to continue the distribution of the Securities and, in the case of any such amendments to the Registration Statement, will use its best efforts to cause the same to become effective as promptly as possible. The Company will promptly file all reports and shall make such applications, file such documents and furnish such any definitive proxy or information as may be required for such purpose; provided, however, the Company shall not be statements required to qualify be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so long as a foreign corporation or file a general or limited consent to service the delivery of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance connection with the provisions hereof and offering or sale of the Prospectus, or any amendments or supplements thereto. Securities.
(c) If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, 1933 Act any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act1933 Act or the Rules and Regulations, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented Prospectus (in form and substance reasonably satisfactory to counsel to the Underwriters) or, with the consent of counsel to the Underwriters, make an appropriate filing pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission; and, in case any Underwriter is required to deliver a prospectus relating to the Securities nine months or more after the date of this Agreement, the Company upon the request of the Representatives and at the expense of such Underwriters will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will deliver to the Representatives, at or before the Closing Date, signed copies of the Registration Statement and all amendments thereto (including all financial statements and exhibits thereto and all documents incorporated or deemed to be incorporated by reference therein) and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements and all documents incorporated or deemed to be incorporated by reference therein but without exhibits, and of all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and there after from time to time during the period when delivery of a prospectus relating to the Securi ties is required under the 1933 Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented, as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any -------- ------- prospectus required for use nine months or more after the date of this Agreement, shall be borne by the Underwriters required to deliver such prospectus. The copies of the Registration Statement and each amendment thereto and the copies of any preliminary prospectus and any preliminary prospec tus supplement and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act, covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Securities to be qualified for sale under the securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate and at the request of the Representatives will make such applications and furnish such information as may ▇▇▇▇▇▇▇ ▇▇▇ be required of it as the issuer of the Securities for that purpose; provided, however, that the -------- ------- Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file with such statements and reports as are or may be required of it as the Commission an appropriate amendment or supplement in accordance with Section 10 issuer of the Act, each Securities to continue such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and qualifications in such quantities effect for so long a period as the Underwriters Representatives may requestreasonably request for the distribution of the Securities.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information, in reasonable detail which may be unaudited. During a the period of three (3) five years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, as soon as practicableupon request, to each of the other Underwriters, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:Representatives, as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such and, as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange.
(h) The Company will use the net proceeds received by it from the sale of the Securities sold by it in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(i) every press release and every material news item or article Immediately following the execution of interest to this Agreement, the financial community in respect Company will prepare a prospectus supplement, dated the date hereof (the "Prospectus Supplement"), containing the public offering price of the CompanySecurities, or its affairs which was released or prepared by or on behalf the underwriting discounts and commissions, the plan of distribution of the Company; Securities and such other information as may be required by the 1933 Act or the Rules and Regulations or as the Representatives and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) of the Rules and Regulations copies of such Prospectus Supplement and, if required by Rule 424(b), the Base Prospectus.
(iij) any additional information of a public nature concerning During the period beginning on the date hereof and continuing through and including the Closing Date, the Company (and will not offer, sell, contract to sell or otherwise dispose of any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts debt securities of the Company or any of its subsidiaries which are substan tially similar to the Securities (other than the Securities) or any securities convertible into or exchangeable or exercisable for any debt securities of the Company or any of its subsidiaries which are substantially similar to the Securities or any rights, warrants or options to purchase any debt securities of the Company or any of its subsidiaries which are substantially similar to the Securities, without your prior written consent.
(k) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code.
(l) In accordance with the provisions of the Cuba Act, if applicable, and its subsidiary are consolidatedwithout limitation to the provisions of Section 6 hereof, the Company will indemnify each Underwriter against any and all losses, claims, damages, liabilities and expenses (including attorneys' fees) arising out of or based upon any violation by the Company of the Cuba Act.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Registration Statement has been declared effective by Commission order dated , 2005. The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission be maintained as promptly as practicable effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) if and when the Registration Statement is no longer effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the 1933 Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the 1933 Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by 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 made in the Registration Statement, the Preliminary Prospectus or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Preliminary Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the 1933 Act or any other Law (as defined in Section 6(k) below). If at any time the Commission for 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. The Company will provide the Underwriter with copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If the Commission supplement and (ii) you have not reasonably objected to such filing, amendment or the state securities commission authority of any state shall enter supplement after being so advised and having been given a stop order reasonable opportunity to review such filing, amendment or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordersupplement.
(cd) The Company shall file the Prospectus (in form and substance satisfactory Prior to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement Underwriting Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(e) hereof, the Company consents to the use, in accordance with the provisions of the 1933 Act and (ii) with the fifteenth business day after securities or Blue Sky laws of the effective jurisdictions in which the Shares are offered by the Underwriter and by dealers, prior to the date of the Registration StatementProspectus, of each Preliminary Prospectus so furnished by the Company.
(de) The As soon after the execution and delivery of this Underwriting Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus is required by the 1933 Act to be delivered in connection with sales by the Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will give the Representative notice of its intention to file or prepare any amendment deliver to the Registration Statement Underwriter and each dealer, without charge, as many copies of the Prospectus (including any post-effective amendment) or and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use Shares are offered by the Underwriters Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required 1933 Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the Act1933 Act and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriter is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Act1933 Act or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to the Underwriters Underwriter, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Underwriting Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such quantities as Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of not less than one year after the Underwriters may requestdate hereof.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Commission Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act.
(h) During a the Prospectus Delivery Period and for not less than one year after the date hereof, the Company will file and furnish all documents required to be filed or furnished with the Commission pursuant to Sections 13, 14 and 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Commission regulations and rules (“Commission Regulations”), in the manner and within the time periods required by the Exchange Act and Commission requirements of Nasdaq National Market (“Nasdaq”) and the National Association of Securities Dealers, Inc. (the “NASD”) or any national securities exchange where any Company securities are listed.
(i) During the period of three (3) beginning on the date hereof and ending five years after from the date hereof, the Company will furnish to its stockholders, you (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the NASD or Nasdaq or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Underwriting Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 hereof, other than clauses (ii), (iv) or (vii)) or if this Underwriting Agreement shall be terminated by the Underwriter because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Underwriting Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including financial travel expenses and the fees and expenses of counsel for the Underwriter, but excluding wages and salaries paid by you) reasonably 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 in accordance in all material respects with the statements audited under the caption “Use of Proceeds” in the Prospectus.
(l) If Rule 430A under the 1933 Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the 1933 Act.
(m) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the 1933 Act, without your prior written consent, the Company will not and will cause each of its subsidiaries to not (i) directly or indirectly, issue, announce the intention to sell, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, “Company Securities”) or any rights to purchase Company Securities, or file any registration statement under the 1933 Act with respect to any of the foregoing, or (ii) enter into any swap, forward contract, or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences or risks of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriter pursuant to this Underwriting Agreement and each report on Form 10-KSB except for (x) sales of shares of Common Stock to employees under the Company’s Employee Stock Purchase Plan (as described in the Prospectus) (y) grants of options pursuant to the Company’s 1999 Stock Option Plan (as described in the Prospectus) and (z) except for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under the Company’s 1999 Stock Option Plan.
(n) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of the undertakings contained in the Registration Statement.
(p) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company filed with Nasdaq a notice of sale of additional shares on September 12, 2005, and will timely file with Nasdaq all documents and notices required by Nasdaq of companies that have or will issue securities that are consolidatedtraded on Nasdaq.
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(s) The Company will have an annual audit prepared by an accounting firm of nationally recognized standing that is registered and in good standing with the Public Company Accounting Oversight Board (“PCAOB”) and is “independent” of the Company under the 1933 Act, the Exchange Act and the PCAOB’s rules.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause If, at the Registration Statement time this Agreement is executed and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any timedelivered, 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with it is necessary for a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Shares may commence, the Company will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective. If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b) under the Securities Act, any event occurs as a result of which the Time of Sale Information would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Company will (i) notify promptly the Representatives so that any use of the Time of Sale Information may cease until it is amended or supplemented; (ii) amend or supplement the Time of Sale Information to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Company, its affiliates or its filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (ivsuch purpose or any examination pursuant to Section 8(e) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment Securities Act relating to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date Section 8A of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Securities Act in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(bShares; (iii) of the Rules and Regulations), and will furnish receipt by the Representative with copies Company of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation notification with the Representative, at or prior respect to the time suspension of the Registration Statement becomes effective, to qualify qualification of the Securities Shares for offering and sale under in any jurisdiction or the securities laws institution or threatening of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required any proceeding for such purpose; providedand (iv) within the period of time referred to in Section 5(h) hereof, howeverof any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the ProspectusOperating Partnership, or any amendments subsidiaries thereof, taken as a whole, or supplements thereto. If at of any time when a prospectus relating event that comes to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result attention of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, Operating Partnership that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated therein respect or necessary to make that requires the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy making of any report on Form 10-QSB (additions thereto or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.changes therein in
Appears in 1 contract
Sources: Underwriting Agreement (NexPoint Residential Trust, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will use its best commercially reasonable efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission be maintained as promptly as practicable effective, and will not at any time, whether before or after advise you promptly and will confirm such advice in writing (i) if and when the Registration Statement is no longer effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the 1933 Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the 1933 Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information or with respect to any Incorporated Documents included in the Registration Statement, the Preliminary Prospectus or the Prospectus, (iv) 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 the 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 any of the Offered Securities for offering or sale in any jurisdiction or the initiation of any Proceeding for such purposes or a Proceeding under Section 8A of the initiation1933 Act, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) within the period of time referred to in Section 4(e) below, of any request by change in the condition (financial or other), business, management, properties, net worth, results of operations, cash flows or prospects of the Company and its subsidiaries or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement, the Preliminary Prospectus or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Preliminary Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the 1933 Act or any other Law. If at any time the Commission for or other securities official of any amendment jurisdiction 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. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Commission Rule 424(b) of the 1933 Act before the close of business on the first business day immediately following the date hereof. The Company will timely file with the Commission, subject to the terms and conditions hereof regarding the Company’s use of an Issuer Free Writing Prospectus, any Issuer Free Writing Prospectus as required by Commission Rule 433 under the 1933 Act.
(b) The Company will furnish to you and to each Underwriter, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment or supplement to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the 1933 Act and with the securities or Blue Sky Laws of the jurisdictions in which the Offered Securities 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.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is (iior but for the exemption in Rule 172 would be) required by the fifteenth business day after 1933 Act to be delivered in connection with sales by any Underwriter or a dealer (the effective date “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Registration Statement.
(d) The Offered Securities, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use Offered Securities are offered by the several Underwriters and by all dealers to whom Offered Securities may be sold, both in connection with the offering and sale of the Offered Securities which differs from the corresponding prospectus on file at the Commission, and for such period of time thereafter as the case may Prospectus is required by the 1933 Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the time later of (i) the completion of the distribution of the Offered Securities pursuant to the offering contemplated by the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed (ii) the filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior respect to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the ActOffered Securities, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Act1933 Act or any other Law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its commercially reasonable efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto or supplement in accordance with Section 10 of where to the Act, each such amendment or supplement extent permitted by the Rules and Regulations to be satisfactory to Underwriters' Counselfile a Free Writing Prospectus, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Offered Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky Laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Offered Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Offered Securities, as contemplated by this Agreement and the Prospectus, in such quantities as any jurisdiction where it is not now so subject. In the Underwriters may requestevent that the qualification of the Offered Securities in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Commission Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, within 90 days after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act.
(h) During a the Prospectus Delivery Period and for not less than one year after the date hereof, the Company will file and furnish all documents required to be filed or furnished with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act and Commission Regulations, in the manner and within the time periods required by the Exchange Act, Commission Regulations, the requirements of the Nasdaq and the NASD or any securities exchange where any Company securities are listed.
(i) During the period of beginning on the date hereof and ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the NASD or Nasdaq or any securities exchange other than such reports and proxy statements not available on ▇▇▇▇▇ and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) The Company will reimburse you and the other Underwriters for all out-of-pocket expenses (including financial statements audited by independent public accountants)travel expenses and the fees and charges of counsel for the Underwriters, but excluding wages, salaries, and other overhead costs paid by you) reasonably incurred by you in connection herewith and the transactions contemplated hereby not to exceed $50,000.
(k) The Company will apply the net proceeds from the sale of the Offered Securities to be sold by it hereunder in accordance with the statements under the caption “Use of Proceeds” in the Prospectus.
(l) If Rule 430A under the 1933 Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) and Rule 430A under the 1933 Act.
(m) For a period of 45 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the 1933 Act, without your prior written consent, the Company will not and will cause each report on Form 10-KSB of its subsidiaries to not (i) directly or indirectly, issue, announce the intention to sell, pledge, offer or contract to sell or otherwise dispose of or transfer any shares of Company preferred stock or any rights to purchase Company preferred stock, or file any registration statement under the 1933 Act with respect to any of the foregoing, (or 10-Kenter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) or (ii) enter into any swap, forward contract, or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company securities whether any such swap or transaction is to be settled by delivery of preferred stock, in cash or otherwise, or publicly announce an intention to effect any such transaction except to the Underwriters pursuant to this Agreement.
(n) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will cause to be paid the following: (i) the fees, a copy disbursements and expenses of any report on Form 10-QSB (or 10-Qthe Company’s counsel and accountants in connection with the registration of the Offered Securities under the 1933 Act and all other expenses in connection with the preparation and filing of all copies of the Registration Statement, as the case may be)Preliminary Prospectus, the Prospectus and the Incorporated Documents, including any amendment thereto amendments and supplements to any of the foregoing documents; (ii) the preparation, printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Prospectus, each current report on Form 8-KPreliminary Prospectus, the Blue Sky memoranda, the Master Agreement Among Underwriters, this Agreement, the Selected Dealers Agreement and all amendments or supplements to any of them as may be reasonably requested for use in connection with the offering and sale of the Offered Securities; (iii) all expenses in connection with the qualification of the Offered Securities for offering and sale under state and foreign securities Laws or Blue Sky Laws, including reasonable attorneys’ fees and charges of the Underwriters’ counsel in connection therewith; (iv) the filing fees incident to securing any amendment required review by the NASD of the fairness of the terms of the sale of the Offered Securities and the reasonable fees and charges of the Underwriters’ counsel relating thereto; (v) the fees and expenses associated with including the Offered Securities for trading on Nasdaq; (vi) the cost of preparing and delivering certificates for the Offered Securities; (vii) the costs and charges of any transfer agent or registrar or book-entry depository; (viii) the cost of the tax stamps, if any, in connection with the issuance and delivery of the Offered Securities to the respective Underwriters; (ix) all other fees, costs and expenses referred to in Item 13 of the Registration Statement; and (x) the transportation, lodging, graphics and other expenses incurred by the Company and Underwriters in preparing for and participating in the “roadshow” for the offering contemplated hereby.
(o) [Reserved]
(p) The Company will file promptly with the SEC all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, and will promptly deliver a copy provide copies thereof to each of each such report the Underwriters as provided in Section 4(i). In addition, from the date hereof through the last Additional Closing Date, at the same time the Company makes any announcement to the Representative and will deliver general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed with the Commission pursuant to the Representative:
(i) every press release and every material news item Exchange Act or article of interest with Nasdaq, the Company will furnish the information contained or to be contained in such announcement to each Underwriter and, subject to the financial community in respect provisions of the Companysubsections (a), or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiaryb) or its businesses which the Representative may request. During such three (3)-year periodc) of this Section, will, if the Company has an active subsidiarydeems it necessary or appropriate, cause the Prospectus and any Free Writing Prospectus to be amended or supplemented to reflect the information contained in such announcement. From the date hereof through the last Additional Closing Date, the foregoing financial statements Company also will be on a consolidated basis furnish each Underwriter with copies of all press releases or announcements to the extent that general public concerning its results of operations or financial condition.
(q) From the accounts date hereof through the last Additional Closing Date, as soon as the Company has notice, written or otherwise, of any downgrading or withdrawal of the rating of any debt, asset-backed or other securities issued or guaranteed by, or the financial strength of, the Company or any of its subsidiaries or any proposal to downgrade or withdraw the rating of any debt, asset-backed or other securities or the financial strength of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)(2) under the ▇▇▇▇ ▇▇▇) or any pending public announcement that any such organization has under surveillance or review its rating of any debt, asset-backed or other securities or the financial strength of the Company or its subsidiaries (other than an announcement with positive implications of a possible upgrading, and its subsidiary are consolidated.no implication of a possible downgrading or withdrawal of such rating), the Company will immediately notify each Underwriter of such d
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) of the effective time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every commercially reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with electronic copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) If requested by you, the Company will furnish to you, without charge, two copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant through the time when a prospectus relating to Rule 424(b)(1) (or, if applicable and if consented to the Shares is required by the RepresentativeAct to be delivered in connection with sales of the Shares any amendment or supplement to the Registration Statement or the Prospectus that may, pursuant to Rule 424(b)(4)) not later than in the judgment of the Company or the Representative be required by the Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission through the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required by the Act to be delivered under in connection with sales of the Shares.
(e) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act, ; and if at any event time after the date hereof any events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Promptly following the execution and delivery of this Agreement, the Company will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, electronic copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its commercially reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will furnish file all documents required to be filed with the Underwriters copies Commission pursuant to Sections 13, 14 and 15 of such amendment or supplement as soon as available the Exchange Act in the manner and in such quantities as within the Underwriters may requesttime periods required by the Exchange Act.
(gj) During a period The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of three the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its commercially reasonable best efforts to qualify or register its Class A Common Stock for sale in non-issuer transactions under (3or obtain exemptions from the application of) years the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as required for the distribution of the Shares, but in no event beyond one year after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earning statement (in form complying with the provisions of Rule 158 under the Act), 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 after the end of such period, which consolidated earning statement shall satisfy the provisions of Section 11(a) of the Act.
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 or Section 12 hereof, other than clauses (iv) or (v)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable and documented out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) not to exceed an aggregate of $250,000 reasonably incurred by you and the Underwriters in connection herewith.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the day that is 30 days after the date of the Prospectus (the “Lock-Up Period”), the Company agrees not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future) any shares of Class A Common Stock or securities convertible into or exchangeable for Class A Common Stock (other than the Class A Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants, rights or other awards), or sell or grant options, rights or warrants with respect to any shares of Class A Common Stock or securities convertible into or exchangeable for Class A Common Stock (other than the grant of options or other awards pursuant to equity incentive plans existing on the date hereof), (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 such shares of Class A Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Class A Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Class A Common Stock or securities convertible, exercisable or exchangeable into Class A Common Stock or any other securities of the Company (other than the filing of a registration statement on Form S-8 or a successor form thereto or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer and director of the Company set forth on Schedule VI hereto to furnish to the Representative, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). The restrictions on the Company contained in the preceding sentence shall not apply to (A) the Shares to be sold hereunder, (B) the issuance of up to 103,034 shares of Class A Common Stock that may be issued in connection the acquisition of ▇▇▇▇▇▇▇▇▇▇ Disposal Enterprises of Western New York, LLC, (C) the issuance of shares of Class A Common Stock, restricted stock units, options to purchase Class A Common Stock or performance units pursuant to employee benefit plans, qualified stock option plans, the Company’s equity incentive plans or other employee compensation plans in effect on the date of this Agreement and that are disclosed in the Company’s public filings with the Commission and incorporated by reference in the Prospectus or pursuant to currently outstanding restricted stock units, options, warrants, rights or performance units and (D) the sale or issuance of shares of Class A Common Stock to an unaffiliated third party in connection with an acquisition, a merger, a consolidation or sale or purchase of assets or in connection with a strategic alliance, investment, partnership, collaboration, marketing arrangement or other joint venture or strategic transaction in an aggregate amount not to exceed 10% of the outstanding shares of Class A Common Stock as of the date of this Agreement, provided that prior to the issuance of any shares of Class A Common Stock pursuant to this clause (D) during the Lock-Up Period, the recipient(s) of such shares of Class A Common Stock shall sign and deliver a lock-up agreement substantially in the form of Exhibit A hereto.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be, at the reasonable request of the Underwriters, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) 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 or manipulation of the price of the shares of Class A Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with the Nasdaq Global Select Market (“Nasdaq”) all documents and notices required by the Nasdaq of companies that have or will issue securities that are consolidatedtraded on the Nasdaq.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdict
Appears in 1 contract
Covenants and Agreements of the Company. (a) The Company covenants and agrees with each of the Underwriters as follows:
(ai) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(bii) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(ciii) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeRepresentatives) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeRepresentatives, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(div) The Company will give the Representative Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representatives or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP ("Underwriters' Counsel"), shall object.
(ev) The Company shall endeavor in good faith, in cooperation with the RepresentativeRepresentatives, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Representatives may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Representatives agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(fvi) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Representatives promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section SECTION 10 of the Act, each such amendment or supplement to be satisfactory to 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 request.
vii) As soon as practicable, but in any event not later than 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 occurs (g90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of SECTION 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
viii) During a period of three (3) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the RepresentativeRepresentatives:
(ia) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(b) concurrently with furnishing such annual reports to its stockholders, 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;
(c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(e) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iif) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Representatives may request. During such three five (3)-year 5)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
ix) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
x) The Company will furnish to the Representatives or on the Representatives' order, without charge, at such place as the Representativess may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representatives may request.
xi) On or before the effective date of the Registration Statement, the Company shall provide the Representatives with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of not less than nine (9) months from the effective date of the Registration Statement, holders of all shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, will not directly or indirectly, issue, offer to sell, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of ▇▇▇▇▇▇▇▇▇▇ (collectively, the "Lock-up Agreements"). On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. During the nine (9) month period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of ▇▇▇▇▇▇▇▇▇▇, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. During the nine (9) month period commencing with the effective date of the Registration Statement, the Company shall not file any registration statement with the Securities and Exchange Commission on Form S-8 without the prior written consent of the Representatives.
xii) Neither the Company nor any of the Subsidiaries, nor any of their officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
xiii) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
xiv) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
xv) The Company shall furnish to the Representatives as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letter to be furnished pursuant to SECTION 6(j) hereof.
xvi) The Company shall cause the Common Stock to be quoted on Nasdaq or a National Securities exchange and for a period of seven (7) years from the date hereof, and use its best efforts to maintain the Nasdaq quotation or exchange listing of the Common Stock to the extent outstanding.
xvii) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representatives at the Representatives' request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
xviii) As soon as practicable, (i) but in no event more than 5 business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than 30 days from the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
xix) The Company hereby agrees that it will not for a period of thirteen (13) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement permitting the grant, issue or sale of any shares of Common Stock or other securities of the Company (i) in an amount greater than an aggregate of [_________] shares of Common Stock, (ii) at an exercise or sale price per share less than the fair market value of the Common Stock on the date of grant or sale, (iii) to any direct or indirect beneficial holder on the date hereof of more than 10% of the issued and outstanding shares of Common Stock, (iv) with the payment for such securities with any form of consideration other than cash, (v) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company.
xx) Until the completion of the distribution of the Shares, and for 25 days thereafter, the Company shall not without the prior written consent of the Representatives and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby.
xxi) For a period equal to the lesser of (i) seven (7) years from the date hereof, and (ii) the sale to the public of the Representatives' Shares, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form S-1 (or other appro
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows▇▇▇▇▇▇▇▇:
(a) The Company shall use its best efforts to cause the Registration Statement and To make no amendment or any amendments thereto to become effective with the Commission 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 unless ▇▇▇▇▇▇▇▇ is given a copy of such proposed amendment or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copysupplement; to advise ▇▇▇▇▇▇▇▇, or to which the Representative shall have objected within two (2) business days promptly after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge it receives notice thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission any state, federal or other regulatory authority of any stop order or of any order preventing or suspending the use of any Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or the threatening of any proceeding suspending for any such purpose, or of any request by any regulatory authority for the effectiveness amending or supplementing of the Registration Statement Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectussuspending any such qualification, 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment promptly to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to obtain promptly the lifting withdrawal of such order.;
(cb) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will To furnish the Representative Kendrick with copies of any the Prospectus in such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, quantities as the case ▇▇▇▇▇▇▇▇ may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in forcereasonably request, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectusand, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, if any event shall have occurred as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or if it is necessary at any supplement the Prospectus, to notify ▇▇▇▇▇▇▇▇ and upon ▇▇▇▇▇▇▇▇ 's request to prepare and furnish without charge to ▇▇▇▇▇▇▇▇ as many copies as ▇▇▇▇▇▇▇▇ may from time to amend time reasonably request of an amended Prospectus or a supplement to the Prospectus to comply with which will correct such statement or omission or effect compliance;
(c) To use the Act, net proceeds received by it from the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 sale of the Act, each such amendment or supplement Notes pursuant to be satisfactory to Underwriters' Counsel, and this Agreement in the Company will furnish to manner specified in the Underwriters copies Prospectus under the caption "Use of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.Proceeds";
(gd) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every There has been no material news item or article of interest to the financial community in respect of the Companyadverse change, or its affairs which was released any development involving a prospective material adverse change, in the condition, financial or prepared by otherwise, in the earnings, business or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts operations of the Company and its subsidiary subsidiaries, takes as a whole, except as set forth in the Prospectus;
(e) There are consolidatedno legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Prospectus and proceedings that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its respective obligations under this Agreement, the Indenture, or the Notes or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(f) The Company is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, the Company will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(g) Except as described in the Prospectus, (i) the Company has good and marketable title to all real property and good and marketable title to all personal property owned, mortgage notes and debt securities by it which is material to the business of the Company, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company; and (ii) any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material to the Company and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company;
(h) The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or other regulatory authorities necessary to conduct its business as presently conducted, except as described in the Prospectus or where the failure to possess such certificates, authorizations and permits would not, singly or in the aggregate, have a material adverse effect on the Company, taken as a whole; and no officer or representative of the Company has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company, taken as a whole, except as described in the Prospectus; and
(i) The consolidated financial statements of the Company and the related notes thereto included in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the related rules and regulations of the Commission; present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and cash flows of the Company and its consolidated subsidiaries for the periods specified; and have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby (except as noted therein) ; and
(k) No relationship, direct or indirect, exists between the Company or any of its subsidiaries and the directors, officers or managers of the Company that is required by the Act to be described in the Prospectus and that is not so described in such documents.
Appears in 1 contract
Sources: Managing Placement Agent Agreement (Ministry Partners Investment Company, LLC)
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-post- effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-post- effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, -------- however, the Company shall not be required to qualify as a foreign corporation ------- or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and warrant agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed Lock-up Agreements. During the 12 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock except for (i) options issued under the Company's 1995 Stock Option Plan to employees, consultants and directors and (ii) shares of Common Stock, options or warrants issued to outside parties in connection with strategic alliances, joint ventures or other corporate partnerships with the Company. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) None of the Company, nor any of its officers, directors, stockholders, nor any of its affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(p) The Company shall cause the Units, Common Stock and Redeemable Warrants to be quoted on Nasdaq and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the Nasdaq listing of the Common Stock and the Redeemable Warrants to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's reasonable request and the Company's sole expense, (i) daily consolidated transfer sheets relating to the Units, Common Stock and Redeemable Warrants (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that, except for the 666,667 shares reserved for future issuance under the Company's 1995 Stock Option Plan, it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement, permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Common Stock; (ii) the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options or warrants issued by the Company to exceed such 666,667 shares reserved for future issuance under the Company's 1995 Stock Option Plan; (iii) the payment for such securities with any form of consideration other than cash; or (iv) the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period equal to the lesser of (i) seven (7) years from the date hereof, and (ii) the sale to the public of the Representative's Securities, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act of the Representative's Securities. The Company further agrees to use its best efforts to file such post-effective amendments to the Registration Statement, as may be necessary, in order to maintain its effectiveness and to keep such Registration Statement effective while any of the Redeemable Warrants remain outstanding.
(v) Commencing one year and one day from the date hereof, if the Company engages the Representative as a warrant solicitation agent under the terms of the Warrant Agreement, the Company shall pay the Representative a commission equal to five percent (5%) of the exercise price of the Redeemable Warrants, payable on the date of the exerci
Appears in 1 contract
Sources: Underwriting Agreement (Depomed Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts every reasonable effort to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, ; (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act; (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commissionsuch purposes; and (v) within the Prospectus Delivery Period referred to in Section 5(d) below, of any request change in the Company's condition (financial or other), business, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. If the Company elects, with the consent of the Representative, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request, as well as copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(d) hereof, 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 Commission for several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If the Commission supplement and (ii) you have not reasonably objected to such filing, amendment or the state securities commission authority of any state shall enter supplement after being so advised and having been given a stop order reasonable opportunity to review such filing, amendment or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordersupplement.
(cd) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use 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 Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(e) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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 upon its receipt of written notice thereof.
(f) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, within 75 days, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to 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 request.
(g) During a the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act within the time periods required by the Exchange Act.
(h) During the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters: (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq Stock Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable out-of-pocket expenses (including financial reasonable travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries and other overhead costs paid by you) reasonably incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not: (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and except for: (i) grants of options or other equity-based awards pursuant to the Company's stock option, stock bonus or other stock plans or arrangements in effect as of the date hereof and described in the Prospectus, (ii) issuances of shares of Common Stock upon the exercise of options or other equity-based awards outstanding as of the date hereof under such stock plans, (iii) shares of Common Stock issuable upon exercise of warrants previously granted to the Company's organizers, and each report on Form 10-KSB (iv) shares of Common Stock and options to purchase Common Stock issued in connection with any acquisition approved by the Company's Board of Directors.
(m) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any quarterly period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(o) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(p) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(q) For a period of twelve (12) months after the date hereof, the Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Financial Partners Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best commercially reasonable efforts to cause the Registration Offering Statement and any amendments thereto to become effective with the Commission as promptly as practicable qualified, if it has not already become qualified, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with Offering Statement has become qualified and the Commission and, if time and date of any filing of any amendment or supplement to any Preliminary Offering Circular or 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 post-effective amendment to the Registration Statement becomes effectiveOffering Circular, (ii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Offering Statement, any Preliminary Offering Circular or the Offering Circular or for additional information, (iii) of the issuance by the Commission of any stop order suspending the qualification of the Offering Statement or of the initiation or the threatening suspension of any proceeding suspending the effectiveness qualification of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, such purposes and (iv) within the period of time referred to in Section 5(f) hereof, 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 receipt Company that makes any statement made in the Offering Statement or the Offering Circular (as then amended or supplemented) untrue in any material respect or that requires the making of any comments from additions thereto or changes therein in order to make the Commission; and statements therein (vin the case of the Offering Circular, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Offering Circular (as then amended or supplemented) to comply with the Act or any request by other law. If at any time the Commission for shall issue any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such suspending the qualification at any timeof the Offering Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Offering Circular, in such number as the Underwriters may reasonably request.
(b) The Company will furnish to you, without charge, such number of conformed copies of the Offering Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Offering Statement or the Offering Circular that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus Offering Statement or to the Offering Circular to you and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld, delayed, or conditioned.
(including any revised prospectus e) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Offering Circular. Consistent with the provisions of Section 5(f) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws (“Blue Sky laws”) of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by dealers, prior to the date of the Offering Circular, of each Preliminary Offering Circular so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters an offering circular is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Offering Circular Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Offering Circular and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Offering Circular and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the 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 Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Offering Circular is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Offering Statement or (ii) the Underwriter's Preferred expiration of any offering circular delivery requirements with respect to the Shares is required to be delivered under the Act, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Offering Circular (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus Offering Circular to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become qualified as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to the Underwriters each Underwriter who has previously requested Offering Circular, without charge, a reasonable number of copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestthereof.
(g) During the Offering Circular Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) in the manner and within the time periods required by the Exchange Act.
(h) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Offering Circular, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of three (3) two years after the date hereof.
(i) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the qualification date of the Offering Statement, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(j) During the period ending one year from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (including financial “FINRA”) relating to the offering contemplated hereby, or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request. For purposes of this paragraph, any document filed electronically with the Commission and publicly available shall be deemed to be furnished to the Underwriters.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Offering Circular.
(l) The Company will not invest or otherwise use the net proceeds from the sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act of 1940, as amended.
(m) For a period commencing on the date hereof and ending on the 180th day after the date of the Offering Circular (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, contract to sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (other than the grant of options pursuant to option plans or employee stock purchase plans existing on the date hereof), (2) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, any of the consequences of ownership of such shares of Common Stock or such other securities, 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters; provided that the foregoing restrictions shall not apply to (i) the Company’s sale of the Shares hereunder, including any Directed Shares, (ii) the issuance of shares of Common Stock upon the conversion of the Company’s outstanding preferred stock, warrants and convertible notes, (iii) the issuance of shares of Common Stock or options to acquire Common Stock pursuant to the Company’s employee benefit plans, employee stock purchase plans, qualified stock option plans or other employee compensation plans as such plans are in existence on the date hereof; (iv) the issuance of Common Stock pursuant to the valid exercises of options, warrants or rights outstanding on the date hereof or otherwise issued pursuant to clause (iii); and (v) the issuance of Common Stock or securities convertible into or exercisable for shares of Common Stock in connection with any acquisition, collaboration, licensing or other strategic transaction or any debt financing transaction; provided, that in the case of clause (v), such issuances shall not exceed, in the aggregate, 15% of total outstanding shares of Common Stock.
(n) The Company will announce the impending release or waiver of any restrictions imposed on any executive officer or director of the Company under a Lock-KUp Agreement (as defined in Section 6(nn) of this Agreement) by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representative to any such executive officer or director shall only be effective two business days after the publication date of such press release.
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy if available, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Offering Statement that have been properly prepared and reviewed by the Company’s independent registered accounting firm.
(p) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will use its best efforts to effect and maintain the listing of the Shares on the NASDAQ Capital Market.
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock will be listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(s) The Company agrees that it shall not release any party from a waiver of registration rights or from a waiver of any preemptive rights, rights of first refusal or other similar rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries, during the Lock-Up Period without the written consent of the Representative.
(t) The Company and its subsidiaries will maintain and evaluate the effectiveness of “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) pursuant to the requirements under the Exchange Act; such disclosure controls and procedures are consolidated.designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified under the Exchange Act and in the Commission’s forms and such information is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities to allow timely decisions regarding disclosure, and such disclosure controls and procedures are effective to perform the functions for which they were established; the Company’s independent auditors and the Audit Committee of the Board of Directors of the Company have been advised of (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which could adversely affect the Company’s ability to record, process, summarize, and report financial data for the fiscal year ended 2015 and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting for the fiscal year ended 2015; the principal executive officers (or their equivalents) and principal financial officers (or their equivalents) of the Company will make all certifications required by the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “S▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and any related rules and regulations promulgated by the Commission, and the statements contained in each such certification will be complete and correct; the Company and its subsidiaries are, and the Company has taken all necessary actions to ensure that the Company’s directors and officers in their
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares and Redeemable Warrants by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and warrant agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twenty-four (24) months from the effective date of the Registration Statement, each of the Company's stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she (i) will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representative (collectively, the "Lock-up Agreements") and (ii) waives, during such 24 month period, any and all rights to request or demand the registration pursuant to the Act, of any securities of the Company which are registered in the name of or beneficially owned by it or he or she, respectively. During the 24 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) None of the Company, the Subsidiaries, nor any of its or their respective officers, directors, stockholders, nor any of its or their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(k) and 6(l) hereof.
(p) The Company shall cause the Common Stock and Redeemable Warrants to be quoted on Nasdaq and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the Nasdaq quotation of the Common Stock and the Redeemable Warrants to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and Redeemable Warrants (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Common Stock, except as provided in subsection (ii) of this subparagraph; (ii) the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options or warrants issued by the Company to exceed the aggregate 450,000 shares reserved for future issuance under the Company's Stock Option Plan described in footnote one (1) to the "Prospectus Summary - The Offering" section of the Prospectus; (iii) the payment for such securities with any form of consideration other than cash; or (iv) the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities, the
Appears in 1 contract
Covenants and Agreements of the Company. (A) The Company covenants and agrees with each of the Underwriters you as follows:
(a) The Company will notify you promptly by telephone and (if requested by you) will confirm such advice in writing, (1) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective, (2) if Rule 430A under the Act is used, or the Prospectus is otherwise required to be filed with the Commission pursuant to Rule 424(b) under the Act, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act, (3) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Preliminary Prospectus, the Prospectus, the Registration Statement or any amendment or supplement thereto, or refusing to permit the effectiveness of the Registration Statement ("Stop Order"), or the initiation of any proceedings for any of those purposes, (5) of the happening of any event during the period mentioned in paragraph (f) below which in the reasonable judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or which requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading, and (6) of the receipt of any comments from the Commission or the Blue Sky or securities authorities of any jurisdiction regarding the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto. The Company will use its best efforts to prevent the issuance of any Stop Order by the Commission or any notification from the Blue Sky or securities authorities of any jurisdiction suspending the qualification or registration of the Shares for sale in such jurisdictions, and if at any time the Commission shall issue any Stop Order, or if the Blue Sky or securities authorities of any jurisdiction shall issue notification suspending the qualification or registration of the Shares, the Company will make every reasonable effort to obtain the withdrawal of such Stop Order or notification at the earliest possible moment. The Company will promptly advise you of its receipt of any notification with respect to the suspension of the qualification or registration of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any action or proceeding for such purpose.
(b) Prior to any public offering of the Shares by you, the Company will cooperate with you and your counsel in registering or qualifying the Shares for offer or sale under the Blue Sky or securities laws, rules or regulations of such jurisdictions as you may reasonably request; provided that in no event shall the Company be obligated to register or qualify to do business as a foreign corporation in any jurisdiction where it is not now so registered or qualified or to take any action which would subject it to general service of process, or to taxation as a foreign corporation doing business, in any jurisdiction where it is not now so subject. The Company will pay all fees and expenses relating to the registration or qualification of the Shares under such Blue Sky or securities laws of such jurisdictions as you may designate (including the legal fees, expenses and disbursements of counsel to you for the registration or qualification of the Shares in such jurisdictions as you shall determine). After registration, qualification or exemption of the Shares for offer and sale in such jurisdictions, and for as long as any offering pursuant to this Agreement continues, the Company, at your reasonable request, will file and make such statements or reports, and pay the fees applicable thereto, at such times as are or may be required by the laws, rules or regulations of such jurisdictions in order to maintain and continue in full force and effect the registration, qualification or exemption for offer or sale of the Shares in such jurisdictions. After the termination of the offering contemplated hereby, and as long as any of the Shares are outstanding, the Company will file and make, and pay all fees applicable thereto, such statements and reports and renewals of registration as are or may be required by the laws, rules or regulations of such jurisdictions to maintain and continue in full force and effect the registration, qualification or exemption for secondary market transactions in the Shares, in the various jurisdictions in which the Shares were originally registered, qualified or exempted for offer or sale. The Company shall further cause its counsel to provide to HBW at the Effective Date a list to be updated as of the Closing Date and at least annually thereafter for a minimum of three years, of those states in which the Company's securities may be traded in non-issuer transactions under the Blue Sky laws of the 50 states; provided, that your counsel shall issue the initial opinion for a fee of $5,000 if the Company so desires.
(c) The Company will furnish to you, without charge, four manually-signed copies of the Registration Statement as originally filed on Form SB-2 and of any amendments (including post-effective amendments thereto), including financial statements and schedules, if any, and all consents, certificates and exhibits (including those incorporated therein by reference to the extent not previously furnished to you), heretofore or hereafter made, signed by or on behalf of its officers whose signatures are required thereon and a majority of its board of directors.
(d) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with under the Commission as promptly as practicable Act. Upon such effectiveness, if the Company and you have determined not to proceed pursuant to Rule 430A under the Act, the Company will not at timely file a Prospectus pursuant to, and in conformity with, Rule 424(b), if required, and if the Company and you have determined to proceed pursuant to Rule 430A under the Act, the Company will timely file a Prospectus pursuant to, and in conformity with, Rules 424(b) and 430A under the Act.
(e) The Company will give you and your counsel advance notice of its intention to file any timeamendment to the Registration Statement or any amendment or supplement to the Prospectus, whether before or after the effective date of the Registration Statement, and will not file any such amendment to or supplement unless the Registration Statement Company shall have first delivered copies of such amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised you and furnished with a copy, or to which the Representative your counsel and you and your counsel shall have objected within two (2) business days after its receipt thereof given your consent to the filing of such amendment or which is not in compliance supplement. Any such amendment or supplement shall comply with the Act, the Exchange Act or the Rules and Regulations.
(bf) As soon as From and after the Company is advised or obtains knowledge thereofEffective Date, the Company will advise the Representative and confirm the notice in writingdeliver to you, (i) when the Registration Statementwithout charge, as amended, becomes effective with the Commission and, if the provisions many copies 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 post-effective amendment to the Registration Statement becomes 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or thereto as you may reasonably request. The Company consents to the institution of proceedings for that purpose, (iii) use of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any timeShares may be sold, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters both in connection with the offering or sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required law to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretoconnection therewith. If at any during such period of time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, occur which in the opinion judgment of you or your counsel for should be set forth in the Company or Underwriters' Counsel, 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 Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Actlaw, the Company will notify the Representative promptly and forthwith prepare and duly file with the Commission an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish deliver to the Underwriters each of you, without charge, such number of copies of such amendment or supplement thereof as soon as available and in such quantities as the Underwriters you may reasonably request.
(g) During The Company will promptly pay all expenses in connection with (1) the preparation, printing, filing, distribution and mailing (including, without limitation, express delivery service) of the Registration Statement, each preliminary prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (if any); (2) the issuance and delivery of the Shares; (3) the fees and expenses of legal counsel and independent accountants for the Company relating to, among other things, opinions of counsel, audits, review of unaudited financial statements and cold comfort review; (4) the fees and expenses of a registrar or transfer agent for the Common Stock; (5) the printing, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Agreement Among Underwriters, if any, and the Selected Dealers Agreement; (6) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by you or by dealers to whom Shares may be sold; (7) any fees and communication expenses with respect to filings required to be made by you with the National Association of Securities Dealers Regulation, Inc. (the "NASDR"); and (8) the quotation of the Shares on Nasdaq Stock Market ("NASDAQ"); (9) tombstone advertisements (not to exceed $10,000) and lucite cubes for the offering; and (10) costs of "road shows", if any (with respect to such road shows, each party shall pay its own travel expenses and the Company will pay all other costs associated with holding such shows including expenses in connection with any meetings or presentations).
(h) On the Closing Date, the Company shall sell to you, the Underwriters' Warrant to purchase 150,000 Shares for an aggregate purchase price of $10.
(i) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than by notice given by you pursuant to Section 8 hereof or pursuant to Section 9) or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse you for all of your out-of-pocket expenses (including the fees and expenses of your counsel) reasonably incurred by you in connection herewith.
(j) For a period of three one (1) year after the commencement of the public offering of the Shares by you, without HBW's prior written consent, the Company will not:
(1) offer, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company, except as provided for and as contemplated by this Agreement, as specifically disclosed in the Registration Statement respecting certain post-offering issuances to Company employees and holders of warrants, or for stock options and stock awards granted to employees pursuant to the Company's Equity Incentive Plan attached as an exhibit to the Registration Statement, or as otherwise contemplated by the Letter of Intent; or
(2) redeem any of its securities outstanding as of the closing date of the Public Offering, or pay any dividends or make any other cash distribution in respect of its securities in excess of the amount of the Company's current or retained earnings after the closing date of the Public Offering. HBW shall either approve or disapprove any such contemplated stock redemption or dividend or distribution within five business days after the date HBW receives written notice of the proposed action.
(k) On or prior to the Closing Date, the Company shall obtain:
(1) from each of its officers and directors, his or her enforceable written agreement, in form and substance satisfactory to your counsel, that for a period of twenty-four (24) months after the Effective Date (or any longer period required by any jurisdiction in which the offer and sale of the Shares is to be registered or qualified);
(3) from each of other shareholders, his or her enforceable written agreement, in form and substance satisfactory to your counsel, that for a period of twelve (12) months after the Effective Date (or any longer period required by any jurisdiction in which the offer and sale of the Shares is to be registered or qualified) that he or she will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any securities of the Company (including without limitation any shares of Common Stock), owned by him or her as of the Closing Date, whether upon exercise of warrants, stock options or otherwise, without HBW's prior written consent (the "Lock-up Letter"). An appropriate legend shall be marked on the face of stock certificates representing all of such shares of capital stock prior to the Effective Date, as well as a stop order being issued to the Company's transfer agent. Notwithstanding the foregoing, the Company's directors, officers and existing stockholders may make gifts and intrafamily transfer of the Common Stock provided such transferees agree to be bound by the terms of this restriction on transfer.
(l) The Company has reserved and shall continue to reserve and keep available the maximum number of shares of its authorized but unissued Common Stock and other securities for issuance upon exercise of the Underwriters' Warrant.
(m) For a period of five years after the date hereofof this Agreement, the Company will furnish shall:
(1) retain Amper, Politziner & ▇▇▇▇▇▇ P.A. or another regionally recognized firm of independent public accountants, as its auditors, and at its own expense, shall cause such independent certified public accountants to review the Company's financial statements for each of the first three fiscal quarters of each fiscal year prior to the announcement of quarterly financial information, the filing of the Company's 10-Q quarterly reports and the mailing of quarterly financial information to its stockholdersshareholders;
(2) cause the Company's Board of Directors to meet not less frequently than quarterly, upon proper notice, and cause an agenda and minutes of the preceding meeting to be distributed to directors prior to each such meeting;
(3) distribute to its security holders, within 120 days after the end of each fiscal year, an annual report (containing certified financial statements of the Company) prepared in accordance with those required under Rule 14a-3(b) of Regulation 14A promulgated by the Commission under the Securities Exchange Act of 1934, as amended; and
(4) appoint a transfer agent for the Common Stock, in each case acceptable to you.
(n) For a period of five years after the date of this Agreement, the Company shall furnish you, free of charge, with the following:
(1) within 90 days after the end of each fiscal year, financial statements for the Company certified by the independent certified public accountants referred to in Section 4(m)(1) above, including a balance sheet, statement of operations, statement of shareholders' equity and statement of cash flows, for the Company, with supporting schedules, prepared in accordance with generally accepted accounting principles, as at the end of such fiscal year and for the twelve months then ended, accompanied by a copy of the certificate or report thereon of such independent certified public accountants;
(2) (x) for so long as the Company is a reporting company under any of Sections 12(b), 12(g) or 15(d) of the Securities Exchange Act, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the "Exchange Act"), promptly after filing with the Commission, copies of all reports and proxy soliciting material which the Company is required to file under the Exchange Act, or (y) at such times as the Company is not a reporting company under the aforesaid provisions of the Exchange Act, as soon as practicablepracticable after the end of each of the first three fiscal quarters of each fiscal year, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, including a balance sheet, statement of operations, statement of shareholders' equity and statement of cash flows as at the end of, or its affairs for each such fiscal quarter and the comparable period of the preceding year, which was released or prepared by or on behalf statements need not be audited;
(3) as soon as practicable after they have first been distributed to shareholders of the Company; and
(ii) any additional information , copies of a public nature concerning the Company (each annual and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.interim finan
Appears in 1 contract
Sources: Underwriting Agreement (Stratus Services Group Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares and Redeemable Warrants by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Orri▇▇, ▇▇rr▇▇▇▇▇▇ & ▇utc▇▇▇▇▇ ▇▇▇ ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and warrant agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twelve (9) months from the effective date of the Registration Statement, each of the Company's officers, directors and holders of one percent (1%) or more of the Common Stock of the Company or securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representative (collectively, the "Lock-up Agreements"). During the 9 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock; provided, however, that the Company and any subsidiaries may sell or offer for sale any of their respective securities without the consent of the Representative (i) pursuant to the exercise of option and warrants issued and outstanding on the date hereof and disclosed in the Prospectus; (ii) pursuant to incentive stock or options to officers, directors, employees or consultants at not less than eighty-five percent (85%) of the then current market price of such security, provided that such incentive stock or options are issued prior to the Effective Date of the Registration Statement (for a period of twelve (12) months thereafter, such incentive stock or options may only be issued at the higher of (a) market price or (b) the initial public offering price except for up to an aggregate of 100,000 stock or options issued to new employees of the Company and/or to non-officer or director employees on a merit basis); (iii) in connection with any bona fide merger, acquisition, joint venture or similar corporate partnering transaction, equipment leasing transaction or facilities construction transaction with any nonaffiliate of the Company, and with Eli ▇▇▇l▇ & ▇ompany, or (iv) in connection with a follow-on offering of the Company's securities to the public. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. The Company further covenants that it will not file a registration statement with the Commission during the twelve (12) month period commencing on the effective date of the Registration Statement.
(l) None of the Company, nor any of its officers, directors, stockholders, nor any of its affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(l) and 6(m) hereof.
(p) The Company shall cause the Common Stock and Redeemable Warrants to be listed on AMEX and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the AMEX listing of the Common Stock and the Redeemable Warrants to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's reasonable request and the Company's sole expense,
(i) daily consolidated transfer sheets relating to the Common Stock and Redeemable Warrants (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Mood▇'▇ ▇▇▇ Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that, except as set forth above in Section 4(k) and the [ ] shares reserved
Appears in 1 contract
Sources: Underwriting Agreement (Ophidian Pharmaceuticals Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause will prepare and timely file with the Commission under Rule 424(b) of the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement and in reliance on Rule 430A under the Act. The Company will advise you promptly and, if requested by you, will confirm such advice in writing (i) of any amendments thereto to become effective with request by the Commission as promptly as practicable and will not at any time, whether before for amendments or after the effective date of the Registration Statement, file any amendment supplements to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes effectivefor additional information, (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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation (or threatened initiation, or the threatening, ) of any proceeding for such purposes, and (iii) within the period of time referred to in Section 5(c) 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 purpose, (iv) comes to the attention of the receipt of Company that makes any comments from the Commission; and (v) of any request by the Commission for any amendment to statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus to comply with the Act or for additional informationany other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or the state securities commission authority use of any state shall enter a stop order or suspend such qualification at any timethe Prospectus, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time.
(cb) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and (ii) thereafter from time to time for such period as in the fifteenth business day after reasonable opinion of counsel for the effective date Underwriters a prospectus is required by the Act to be delivered in connection with sales by the Underwriters or a dealer, and for so long a period as you may request for the distribution of the Registration Statement.
(d) The Shares, the Company will give the Representative notice of its intention to file or prepare any amendment deliver to the Registration Statement Underwriters and each dealer, without charge, as many copies of the Prospectus (including any post-effective amendment) or and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the Act and the securities or blue sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly prepare and, subject to Sections 5(a) and prepare and 5(c), file with the Commission an appropriate supplement or amendment thereto, and will furnish to each Underwriter and to each dealer who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(c) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. In each such amendment or supplement to be satisfactory to Underwriters' Counseljurisdiction in which the Shares shall have been qualified as above provided, and the Company will furnish to make and file such statements and reports in each year as are or may be required by the Underwriters copies laws of such amendment jurisdiction. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(d) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(e) The Company will not, directly or supplement as soon as available 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.
(f) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of ) the blue sky laws of each state where necessary to permit market making transactions and secondary trading, and will comply with such blue sky laws and will continue such qualifications, registrations and exemptions in such quantities as effect for a period of five years after the Underwriters may requestdate hereof.
(g) During a period of three (3) years after For so long as the date hereofCompany's Common Stock is listed therewith, the Company will furnish comply with the filing and other requirements of the Nasdaq National Market. The Company will use its best efforts to its stockholderslist, subject to notice of issuance, the Shares on the Nasdaq National Market.
(h) The Company shall direct Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quental, P.A., ▇▇uns▇▇ ▇▇▇ the Company, to deliver to the Underwriters on, or as soon as practicablereasonably practicable after, each annual report the Closing Date, a letter, dated the Closing Date and satisfactory to Underwriters' counsel, to the effect that during the course of the preparation of the Registration Statement and the Prospectus, and any amendments or supplements thereto, nothing has come to the attention of such counsel which has caused it to believe that the Registration Statement, as of the time it became effective under the Act, the Prospectus or any amendment or supplement thereto, on the date it was filed pursuant to Rule 424(b), as of the respective dates when such documents were filed with the Commission, and the Registration Statement and the Prospectus, or any amendment or supplement thereto, as of the Closing Date (including except for the financial statements audited by and other financial and statistical information contained therein or omitted therefrom as to which no opinion need be expressed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(i) The Company shall direct Coopers & Lybrand, independent ▇▇▇▇▇▇ied public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeUnderwriters on, or as soon as reasonably practicable after, the Closing Date, a letter dated the Closing Date confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) every press release in their opinion the audited financial statements and every financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material news item or article of interest to respects with the financial community in respect applicable accounting requirements of the Company, or its affairs which was released or prepared by or on behalf of Act and the Company; andExchange Act and the related published rules and regulations;
(ii) any additional information on the basis of a public nature concerning reading of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (and any future subsidiarybut not an examination in accordance with generally accepted auditing standards) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis would not necessarily reveal matters of significance with respect to the extent that comments set forth in such letter; a reading of the accounts minutes of the meetings of the shareholders, directors and audit committees of the Company and its subsidiary Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to August 31, 1997, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the published rules and regulations of the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are consolidatednot in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to August 31, 1997, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company or decreases in the shareholders' equity of the Company as compared with the amounts shown on the August 31, 1997, consolidated balance sheet included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from September 1, 1997 to such specified date there were any decreases, as compared with August 31, 1997, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters;
(3) the information included or incorporated by reference in the Registration Statement and Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 402 (Executive Compensation) is not in conformity with the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus, the information included or incorporated by reference in the Company's Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (j) include any supplement thereto at the date of the letter.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Securities by the Underwriters of which the Representative Underwriters and Underwriters' Counsel shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters or Underwriters' Counsel shall have objected within two (2) business days after its receipt thereof except if deemed necessary by counsel for the Company, in which case the Underwriters 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.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriters and as soon as practicable confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) Underwriters or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (), or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than on or before the Commission's close of business on date it is required to be filed under the earlier of (i) Act and the second business day following the execution Rules and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementRegulations.
(d) The Company will give the Representative Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which that the Company proposes for use by the Underwriters in connection with the offering of the Securities which that differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or Underwriters' Counsel shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate identified on Exhibit C to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, provided the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) During As soon as practicable, but in any event not later than 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 occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its securityholders (including Bondholders), in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of three (3) years at least 12 consecutive months after the effective date hereofof the Registration Statement.
(h) So long as any of the Bonds remain outstanding, the Company will furnish to its stockholdersBondholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report other reports required to be delivered pursuant to the Representative Indenture, and will deliver to Brookstreet Securities Corporation, as representative for the RepresentativeUnderwriters:
(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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of each of the Company, Company and the Subsidiaries or its their respective affairs which was released or prepared by or on behalf of the CompanyCompany or any of the Subsidiaries; and
(iivi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiarysubsidiaries) or its their respective businesses which the Representative Underwriters may request. During such three (3)-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and, if necessary under the laws of the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock, and also for the Bonds.
(j) The Company will furnish to the Underwriters or on the Underwriters' order, without charge, at such place as the Underwriters may designate, copies of the Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriters may request.
(k) Neither the Company nor any of the Subsidiaries nor any of their respective executive officers directors, principal stockholders or affiliates (within the meaning of the 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 price of any securities of the Company in violation of the Exchange Act.
(l) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "USE OF PROCEEDS" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire or redeem any securities issued by the Company, provided that this covenant shall not restrict the Company's ability to redeem the Securities pursuant to their terms.
(m) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time under the Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(n) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants as stated in their letters to be furnished pursuant to Section 6(i) hereof.
(o) The Company shall, as soon as practicable, but in no event later than five business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and the Underlying Stock.
(p) Until the completion of the distribution of the Securities, neither the Company nor any of the Subsidiaries shall, without the prior written consent of the Underwriters and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company, any of the Subsidiaries, their respective activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(q) For any period during which any of the Bonds are outstanding, the Company will not take any action or actions which may cause the exemption from registration provided by Section 3(a) of the Act (or any successor provision) to be unavailable for the conversion of the Bonds into Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Ilx Inc/Az/)
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares and Redeemable Warrants by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-post- effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-post- effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, -------- however, the Company shall not be required to qualify as a foreign corporation ------- or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and warrant agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twelve (12) months from the effective date of the Registration Statement, each of the Company's stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representative (collectively, the "Lock-up Agreements"). During the 12 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) None of the Company, nor any of its officers, directors, stockholders, nor any of its affiliates (within the meaning of the 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 price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(l) and 6(m) hereof. --------
(p) The Company shall cause the Common Stock and Redeemable Warrants to be on listed on Amex and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock and the Redeemable Warrants to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and Redeemable Warrants (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that, except for the 750,000 shares reserved for future issuance under the Company's 1995 Stock Option Plan it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Common Stock; (ii) the maximum number of shares of Common Stock or other securities of the Company purchasable at any time pursuant to options or warrants issued by the Company to exceed the such 750,000 shares reserved for future issuance under the Company's 1995 Stock Option Plan; (iii) the payment for such securities with any form of consideration other than cash; or (iv) the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade r
Appears in 1 contract
Sources: Underwriting Agreement (Depomed Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Prior to the termination of the offering of the Securities, the Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Preliminary Prospectus or the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their review prior to filing and will not file any document such proposed amendment or supplement to which the Representative reasonably objects. Subject to the foregoing sentence, if the filing of the Prospectus is otherwise required under Rule 424(b), the Act 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 therein and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) 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 Exchange Act before Commission, (ii) when, prior to termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copySecurities, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes shall have been filed or become effective, (iiiii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or of any additional information, (iv) 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 the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution or threatening of proceedings any proceeding for that purpose, purpose and (iiiv) of the issuance receipt by the Commission or by any state securities commission Company of any proceedings for notification with respect to the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, initiation or the threatening, threatening of any proceeding for that such purpose. The Company will use its reasonable 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.
(ivb) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act and the 1933 Act Regulations promulgated thereunder, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations promulgated thereunder, the Company promptly will (i) notify the Representative of any such event, (ii) prepare and file with the Commission, subject to Section 4(a)(i), an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any supplemented Prospectus to each of the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend Underwriters in such qualification at any time, the Company will make every effort to obtain promptly the lifting of quantities as each such orderUnderwriter may reasonably request.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(fd) During As soon as practicable, but in any event not later than 45 days after the time when a prospectus 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 occurs (90 days in the event that the end of such fiscal quarter is required to be delivered under the Actend of the Company’s fiscal year), the Company shall use all reasonable efforts make generally available to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of whichits security holders, in the opinion of counsel for manner specified in Rule 158 under the Company or Underwriters' Counsel1933 Act, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the Prospectus, as then amended or supplemented, includes an untrue statement provisions of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light Section 11(a) of the circumstances 1933 Act and Rule 158 under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the 1933 Act, the Company will notify the Representative 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 satisfactory to 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 request.
(ge) During a period of three (3) two years after from the date hereof, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the Representative:
(i1) concurrently with furnishing the above-mentioned annual reports to its stockholders, statements of income of the Company for each year, in the form furnished to the Company’s stockholders and certified by the Company’s principal financial or accounting officer;
(2) concurrently with furnishing the above-mentioned annual reports to its stockholders, 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;
(3) after the end of each fiscal quarter (excluding the fourth fiscal quarter), a balance sheet of the Company as of March 31, June 30 and September 30 of each year, together with statements of income, stockholders’ equity, and cash flows of the Company for the corresponding fiscal quarter or quarters, as the case may be;
(4) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(5) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission or securities exchange on which any class of securities of the Company is listed; and
(6) every press release and every material news item or article of interest to the financial community in respect of the Company, Company or its affairs affiliates which was released or and prepared by or on behalf of the Company; and. Delivery to the Representative will be deemed to have been made to the extent the Company has filed the above-referenced materials (including those in Section 4(d) above) with the Commission.
(f) For a period of one year from the Closing Date, the Company shall use its best efforts to furnish to the Representative, at the Representative’s request and at the Company’s sole expense, on a quarterly basis (i) a readily available list of the securities positions of participants in the Depository Trust Company in the Common Stock and (ii) any additional information as provided from the transfer agent to the Company, a list of a public nature concerning holders of all of the Company’s securities.
(g) The Company (will furnish to the Representative and any future subsidiary) or its businesses which Underwriters’ Counsel, without charge, at such place as the Representative may designate, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the 1933 Act and the 1933 Act Regulations promulgated thereunder, as many copies of the Preliminary Prospectus and the Prospectus and any supplement thereto as the Representative may reasonably request.
(h) At the Execution Time, the Underwriter shall have received an agreement substantially in the form of Exhibit A hereto signed by the persons listed on Schedule C hereto (the “Lock-Up Agreements”). During such three (3)-year periodOn or before the Closing Date, if the Company has shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company’s ledgers, subject to the terms and conditions of the Lock-Up Agreements.
(i) The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the 1933 Act relating to, any shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the Representative for a period of 90 days (“Lock-Up Period”) after the Execution Date (as defined herein); provided, however, that if (i) the Company issues an active subsidiaryearnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the foregoing financial statements restrictions will 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 the Representative waives, in writing, such extension; the Company will provide the Representative and any co-managers and each stockholder subject to the Lock-Up Period pursuant to the lock-up letters described in Section 4(h) with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period. In addition, the foregoing restriction will not apply to the filing of a registration statement on Form S-8 under the 1933 Act to register securities issuable under the Company’s existing employee benefit plans, issuance of Common Stock upon exercise of an existing option or warrant or conversion of existing preferred stock, or the Company’s granting of awards pursuant to the Company’s existing employee benefit plans.
(j) Prior to the completion of the distribution of the Securities by the Underwriters, neither the Company nor any of its officers or directors nor any of their respective affiliates (within the meaning of the Exchange Act) will take, and the Company will use its reasonable best efforts to prevent any 5% stockholder from taking, directly or indirectly, any action designed to, or which might in the future reasonably be expected to, cause or result in, under the Exchange Act and the rules and regulations thereunder or otherwise, stabilization or manipulation of the price of the Common Stock or any other reference security with respect to the Common Stock, whether to facilitate the sale or resale of the Securities or otherwise, and the Company will, and will use reasonable efforts to cause each of its affiliates to, comply with all applicable provisions of Regulation M in connection with the distribution of the Securities.
(k) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under “Use of Proceeds” in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(l) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the 1933 Act, the Exchange Act and the rules and regulations promulgated thereunder and all such reports, forms and documents filed will comply as to form and substance in all material respects with the applicable requirements under the 1933 Act, the Exchange Act and the rules and regulations promulgated thereunder.
(m) The Company shall cause the Securities to be listed, subject to notice of issuance, on a consolidated basis the NASDAQ Global Market and shall use its reasonable best efforts to maintain the listing of the Common Stock by the NASDAQ Global Market for so long as shares of Common Stock are listed on the NASDAQ Global Market.
(n) The Company has not made and will not make, without the prior written consent of the Representative, any offer relating to the extent Securities using supplementary offering materials, including any materials that would constitute an “issuer free writing prospectus”, as defined in Rule 405 under the accounts of the Company and its subsidiary are consolidated1933 Act.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) the Registration Statement time and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A or Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b), (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purposesuch purposes, (iv) of the receipt of any comments from the Commission; and (v) of when any request by supplement to the Commission for Prospectus, any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed or distributed, and (vi) within the period of time referred to in Section 5(h) hereof, of any change in the Company’s condition (financial or other), business, properties, net worth or results of operations, or of any event that comes to the attention of the Company, in each case that makes any statement made in the Registration Statement Statement, the Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will file with the Commission the Prospectus in accordance with Rule 424(b) before the close of business on the second business day immediately following the date hereof and will provide the Underwriters, without charge, copies of the form of such Prospectus, in such number as the Underwriters may reasonably request.
(b) The Company will furnish to you, without charge, two signed duplicate copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representatives, be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the 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 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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.
(j) The Company will make generally available to its security holders a consolidated earnings statement covering a twelve-month period commencing with the first fiscal quarter after the “effective date” (as defined in Rule 158 promulgated under the Act) of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act and the provisions of Rule 158 promulgated under the Act, each it being understood and agreed that such amendment earnings statement shall be deemed to have been made available by the Company if the Company is in compliance with its reporting obligations pursuant to the Exchange Act, if such compliance satisfies the conditions of Rule 158, and if such earnings statement is made available on E▇▇▇▇.
(k) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus, the Company will not, directly or supplement indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (ii) 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 such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be satisfactory settled by delivery of Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of S▇▇▇▇▇▇▇ Inc. on behalf of the Underwriters' Counsel. Notwithstanding the foregoing, if (A) during the last 17 days of the 90-day lock-up period, the Company issues an earnings release or other press release of material information or a material event relating to the Company occurs or (B) prior to the expiration of the 90-day lock-up period, the Company announces that it will release its earnings results during the 16-day period beginning on the last day of the 90-day lock-up period, the 90-day lock-up period shall be extended by, and the restrictions imposed by this Agreement will continue to apply until the expiration of, the 18-day period beginning on the date of the issuance of the earnings or other press release or the occurrence of the material event; provided, however, that such extension of the lock-up period shall not apply if, (x) in the reasonable determination of the Representatives, the Underwriters meet the requirements set forth in paragraph (a)(1)(iii) of Rule 139 under the Act, (y) at the expiration of the 90-day lock-up period, the Common Stock are “actively traded securities” (as defined in Regulation M under the Exchange Act) and (z) the Company will meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Act in the manner contemplated by NASD Rule 2711(f)(4) of the FINRA Manual. If the lock-up period is so extended, the Company shall not engage in any transaction that may be restricted by this Agreement during the extended lock-up period unless the Company requests and receives prior written confirmation from the Representatives that the restrictions imposed by this Agreement have expired. The Company shall promptly notify the Representatives of any earnings release or press release or event that may give rise to an extension of the initial 90-day lock-up period. The restrictions contained in the preceding paragraph shall not apply to (1) the Shares to be sold hereunder, (2) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant, settlement of restricted stock or the conversion of a security outstanding on the date hereof pursuant to stock plans or otherwise and disclosed in the Time of Sale Information, (3) the issuance by the Company of shares, restricted stock, or options to purchase shares of Common Stock pursuant to the Company’s equity plans disclosed in the Time of Sale Information, and (4) the filing by the Company of a registration statement on Form S-8 or a successor form thereto described in the Preliminary Prospectus and the Time of Sale Information pertaining to the Company’s employee benefit plans; provided, however, that in the case of clauses (2) and (3), the Company shall cause all officers and directors that are recipients of shares of Common Stock or any security convertible into or exercisable for shares of Common Stock to enter into a “lock-up” agreement substantially in the form of Exhibit A hereto (each, a “Lock-Up Agreement”). For purposes of this Agreement insofar as it relates to Lock-Up Agreements, “officer” has the meaning ascribed thereto in Rule 16a-1 promulgated under the Exchange Act. The Company has caused each officer and director to furnish to the Underwriters copies Representatives a Lock-Up Agreement prior to the date hereof. Any transfers, sales or other actions taken by any such officer or director that is not in violation of such amendment his Lock-Up Agreement shall not be deemed to be an action of the Company that is prohibited by the first paragraph of this clause (k) solely by virtue of his status as an officer or supplement as soon as available and in such quantities as the Underwriters may requestdirector.
(gl) During a period of three (3) years after Prior to the date hereofClosing Date or the Additional Closing Date, as the case may be, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited quarterly interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus; provided, however, the Company will be deemed to have furnished such financial statements or information to the extent it is made publicly available on E▇▇▇▇.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(o) The Company will timely file with the NASDAQ Global Select Market (“NASDAQ”) all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(p) The Company has engaged and shall maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(q) If this Agreement shall be terminated by the Company or the Selling Stockholders after execution pursuant to any provision hereof or if this Agreement shall be terminated by the Underwriters pursuant to clause (i) of Section 14 hereof or because of any inability, failure or refusal on the part of the Company or the Selling Stockholders to perform in all material respects any of their respective agreements
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice same in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the outcome of which may result in the suspension of the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of any 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) with the Commission, or transmit the Prospectus by a means reasonably calculated to result in filing the same with the Commission pursuant to Rule 424(b)(1) of the Act (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) of the Act not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Firm Securities or Option Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such amendment or supplement to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, its counsel ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distributiondistribution contemplated hereby, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Firm Securities or the Underwriter's Preferred Shares and Option Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to the Commission, statements of income of the Company for such quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 the Company's 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Class A Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true, originally executed, legally binding and enforceable Lock-Up Agreements which are in form and substance satisfactory to the Representative. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-Up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) The Company agrees that, for a period of twelve (12) months commencing on the effective date of the Registration Statement, and except (i) as contemplated by this Agreement and (ii) upon the conversion of the Company's Class B Common Stock into Class A Common Stock, it and its present and future subsidiaries will not, without the prior written consent of the Representative issue, sell, contract or offer to sell, grant an option for the purchase or sale of, assign, transfer, pledge, distribute or otherwise dispose of, directly or indirectly, any shares of Common Stock or any option, right or warrant with respect to any shares of Common Stock or any type of capital stock having voting or dividend rights on a parity with or superior to the Common Stock, except pursuant to stock options or warrants issued on the date hereof, for cash at less than the greater of the initial public offering price of shares of Common Stock or the then market value of such shares.
(m) Neither the Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(n) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(o) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(p) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to SECTIONS 6(j) hereof.
(q) The Company shall cause the Class A Common Stock to be quoted on NASDAQ and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the NASDAQ listing of the Class A Common Stock to the extent outstanding.
(r) For a period of seven (7) years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Class A Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company and take all necessary and appropriate actions to further qualify the Company's securities in all jurisdictions of the United States in order to permit secondary sales of such securities pursuant to the "blue sky" laws of those jurisdictions, provided that such jurisdictions do not require the Company to qualify as a foreign corporation.
(s) As soon as practicable, (i) file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(t) The Company hereby agrees that it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more of the Class A Common Stock other than pursuant to the Company's 2003 stock incentive plan and 2003 non-employee director compensation plan each as described in or contemplated by the Prospectus; (ii) the payment for such securities with any form of consideration other than cash; or (iii) the existence of stock appreciation rights, phantom options or similar arrangements.
(u) Until the completion of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(v) For a period equal to the lesser of (i) five (5) years from the date hereof, and (ii) the sale to the public of the Representati
Appears in 1 contract
Sources: Underwriting Agreement (Vaso Active Pharmaceuticals Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 to become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus to comply with the Act or for additional informationany other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriter with copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) Upon request, the Company will furnish to you, without charge, two signed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Underwriter be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which Issuer Free Writing Prospectus to you and counsel for the Company proposes for use by the Underwriters in connection Underwriter, and obtain your consent prior to filing any of those with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as which consent will not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the case may be at Shares that would constitute an Issuer Free Writing Prospectus without your prior written consent.
(f) The Company will retain, in accordance with the time the Registration Statement becomes effectiveAct, whether or all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or if supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as it is necessary at any may from time to amend the time reasonably request of an amended or supplemented Issuer Free Writing Prospectus to comply with the Actthat will correct such conflict, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment statement or supplement in accordance with Section 10 of the Act, each omission or effect such amendment or supplement to be satisfactory to 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 requestcompliance.
(g) During a period Prior to the execution and delivery of three (3this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, electronic copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) years after the date hereof, the Company will furnish consents to its stockholdersthe 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 Underwriter and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as soon is practicable and thereafter from time to time for such period as practicablein the reasonable opinion of counsel for the Underwriter, each annual report a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or any dealer (including financial statements audited by independent public accountantsthe “Prospectus Delivery Period”), and each report on Form 10-KSB (or 10-Kfor so long a period as you may request for the distribution of the Shares, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and Company will deliver to the Representative:
(i) every press release Underwriter and every material news item or article of interest to the financial community in respect each dealer, without charge, as many electronic copies of the Company, or its affairs which was released or prepared by or on behalf Prospectus and the Time of the Company; and
(ii) any additional information of a public nature concerning the Company Sale Information (and of any future subsidiaryamendment or supplement thereto) or its businesses which the Representative as it may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.reasonably
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by 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 made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 for 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. If the Company elects, with the consent of the Representative, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, 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.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use 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 Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction 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. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such quantities as Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the Underwriters may requestdate hereof.
(g) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq Stock Market ("Nasdaq") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountantsdelivery of Common Stock or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and except for (1) grants of options pursuant to the Company's stock option, stock bonus or other stock plans or arrangements in effect as of the date hereof and described in the Prospectus (2) issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans and pursuant to the Company's employee stock purchase plan and (3) the issuance of shares of Common Stock on exercise of the warrant held by certain Selling Shareholders (collectively, "Permitted Issuances"), and each report on Form 10-KSB .
(m) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedsubsidiaries prepared for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in Item 17 of Part II of the Registration Statement.
(o) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(p) The Company will timely file with Nasdaq all documents and notices required by Nasdaq to be filed with them.
(q) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
Appears in 1 contract
Sources: Underwriting Agreement (Metrologic Instruments Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and Underwriter promptly and, if requested by the Underwriter, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) below, of any request by change in the Commission for Company’s business, properties, management, condition (financial or other), stockholders’ equity, results of operations or prospects, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriter with copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to the Underwriter, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to the Underwriter, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as the Underwriter may reasonably request.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendmentfiling under Rule 462(b)) or any amendment amendment, supplement or supplement revision to the either any Preliminary Prospectus (including any revised prospectus which the Company proposes for use by Base Prospectus included in the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Registration Statement at the time it became effective) or to the Registration Statement becomes effectiveProspectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations)Act, and the Exchange Act or otherwise, will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof documents a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file or use any such document to which the Underwriter or counsel for the Underwriter shall reasonably object.
(d) The Company will not make any offer relating to the Common Stock that would constitute an Issuer Free Writing Prospectus without the Underwriter’s prior consent.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities will retain in accordance with the provisions hereof Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriter and, upon the Underwriter’s request, to file such document and to prepare and furnish without charge to the Underwriter as many copies as it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission; provided, however, that the Company’s obligations under this Section 5(e) shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance on and in conformity with written information furnished to the Company by or on behalf of the Underwriter specifically for inclusion therein.
(f) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to the Underwriter, without charge, in such quantities as the Underwriter has requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, 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 Underwriter and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(g) During the Prospectus Delivery Period (as hereinafter defined), the Company will file all documents required to be stated filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by the Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as the Underwriter may request for the distribution of the Shares, the Company will deliver to the Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (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 Underwriter 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 the Underwriter or any dealer. If at any time prior to the 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 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriter is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to the Underwriter, if it has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with the Underwriter and counsel for the Underwriter in connection with the registration or supplement qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriter may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits in any jurisdiction 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 the Underwriter promptly in writing.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act.
(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriter because of any inability, each such amendment failure or supplement refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Underwriter for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriter, but excluding wages and salaries paid by the Underwriter) reasonably incurred by the Underwriter in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Shares to be satisfactory sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(m) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or reasonably could be expected to, result in the disposition by any person within the Lock-Up Period) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or sell or grant options, rights or warrants with respect to Underwriters' Counselany shares of Common Stock or securities convertible into or exchangeable for Common Stock, (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 such 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, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Underwriter. The restrictions contained in the preceding sentence shall not apply to (A) the Shares to be sold hereunder, (B) the issuance of shares of Common Stock or options to purchase Common Stock pursuant to employee benefit plans in effect on the date of this Agreement, (C) the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement, or (D) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of shares of Common Stock, provided that such plan does not provide for the transfer of Common Stock during the Lock-Up Period. Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriter waives such extension in writing. The Company will cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Underwriter, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(n) Prior to the Closing Date or the Additional Closing Date, as the case may be, if not otherwise available to the Underwriter via ▇▇▇▇▇, the Company will furnish to the Underwriters Underwriter, as promptly as possible, copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including any unaudited interim quarterly consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedsubsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(p) 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 or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will use its reasonable best efforts to list for quotation the Shares on the New York Stock Exchange (“NYSE”).
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any post-effective amendments thereto to become effective with the Commission 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 to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission 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 date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by 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 made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading 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 for 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. If the Company elects, with the consent of the Representative, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act.
(b) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If the Commission supplement and (ii) you have not reasonably objected to such filing, amendment or the state securities commission authority of any state shall enter supplement, in writing, after being so advised and having been given a stop order reasonable opportunity to review such filing, amendment or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordersupplement.
(c) The Consistent with the provisions of Section 5(d) hereof, the Company shall file the Prospectus (in form and substance satisfactory consents to the Representative) or transmit the Prospectus by a means reasonably calculated to result use, in filing accordance with the Commission pursuant to Rule 424(b)(1) (or, if applicable provisions of the Act and if consented to with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Representativeseveral Underwriters and by dealers, pursuant prior to Rule 424(b)(4)the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(d) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after “Prospectus Delivery Period”), and for so long a period as you may reasonably request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus 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 Company proposes for use 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 Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(b) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(e) The Company will make generally available to its security holders a consolidated earnings statement (in accordance form complying with Section 10 the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the ActRegistration Statement and the Rule 462 Registration Statement, each such amendment or supplement to be satisfactory to Underwriters' Counselif any, and ending not later than
(f) During the Prospectus Delivery Period, the Company will furnish file all documents required to be filed with the Underwriters copies Commission pursuant to Sections 13, 14 and 15 of such amendment or supplement as soon as available the Exchange Act in the manner and in such quantities as within the Underwriters may requesttime periods required by the Exchange Act.
(g) During a period If this Agreement shall terminate or shall be terminated after execution pursuant to clauses (iv) or (v) of three Section 11 hereof, or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (3including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) years after reasonably incurred by you in connection herewith.
(h) The Company will apply the date hereofnet proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(i) If Rule 430A under the Act is employed, the Company will furnish timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to its stockholdersRule 424(b) under the Act.
(j) For a period of 90 days after the date of this Agreement, as soon as practicablewithout your prior written consent, each annual report (including financial statements audited by independent public accountants)the Company will not, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item directly or article indirectly, issue, sell, offer or contract to sell or otherwise dispose of interest or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, “Company Securities”) or any rights to purchase Company Securities, or file any registration statement (other than an amendment to the financial community Company’s Registration Statement on Form S-3 (No. 333-108227) filed with the Commission on August 26, 2003) under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in respect whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, except (A) to the Underwriters pursuant to this Agreement, (B) for grants of options pursuant to the Company’s stock option, stock bonus or other stock plans or arrangements in effect as of the date hereof and described in the Prospectus, (C) for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans, (D) for shares of Common Stock issuable upon conversion of the Company’s Series A Mandatory Convertible Preferred Stock or (E) for shares of Common Stock issued to HCC Insurance Holdings, Inc. (“HCC”) as described in the Prospectus.
(k) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(l) The Company will not at any time, directly or indirectly, take any action designed, or its affairs which was released might reasonably be expected to cause or prepared by result in, or on behalf which will constitute, stabilization or manipulation of the Company; andprice of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(iim) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(n) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses national securities exchange on which the Representative may request. During such three Common Stock is listed, a registrar (3)-year periodwhich, if permitted by applicable laws and rules may be the Company has an active subsidiary, same entity as the foregoing financial statements will be on a consolidated basis to transfer agent) for the extent that the accounts of the Company and its subsidiary are consolidatedCommon Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares Securities by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
(g) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, 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 certificate 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, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company Company, its subsidiaries (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of thirteen (13) months from the effective date of the Registration Statement, each of the Company's officers, directors, stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representatives (collectively, the "Lock-up Agreements"). During the 13 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any securities or any options, rights or warrants with respect to any securities. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, the Subsidiary, nor any of its or their respective officers, directors, stockholders, nor any of its or their respective affiliates (within the meaning of the 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 price of any securities of the Company.
(m) Each of the Company and the Subsidiary shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) Each of the Company and the Subsidiary shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company and the Subsidiary (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on AMEX and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the AMEX quotation of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period of not less than five (5) years.
(s) The Company hereby agrees that it will not, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is less than the greater of the public offering price of the Shares set forth herein and the fair market value on the date of grant or sale or (y) to any of its executive officers or directors or to any holder of 5% or more the Common Stock; (ii) the payment for such securities with any form of consideration other than cash; or (iii) the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period of twenty-four (24) months after the effective date of the Registration Statement, the Company shall not restate, amend or alter any term of any written employment, consulting or similar agreement entered into between the Company and any officer, director or key employee as of the effect
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission 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 post-effective amendment to the Registration Statement thereto becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus 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, any Prepricing Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in subsection 5(e) hereof, of any request 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 made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein not misleading 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 make every reasonable effort to obtain the withdrawal of such order at the earliest possible time. If the Company elects to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act by the close of business in New York on the business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission for such Prospectus in accordance with Rule 424(b) of the Act by the close of business in New York on the business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement 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 for additional information. If supplement) or to which you have reasonably objected after being so advised.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of such orderthe Act and with the securities 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.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and (ii) thereafter from time to time for such period as in the fifteenth business day after reasonable opinion of counsel for the effective date Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Registration StatementShares, the Company will deliver to each Underwriter, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities 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.
(df) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes cooperate with you and counsel for use by the Underwriters in connection with the offering registration or qualification of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities Shares for offering and sale by the several Underwriters and by dealers under the securities laws of such jurisdictions as the Representative you may reasonably designate and will file such consents to permit the continuance service of sales and dealings therein for as long process or other documents as may be reasonably necessary in order to complete the distribution, and effect such registration or qualification; provided that in no event shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or file a general or limited consent to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action it is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 requestsubject.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the Provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the NASD or any securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Selling Shareholders to perform any agreement herein or to comply with any of the terms or provisions hereof, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial statements audited travel expenses and fees and expenses of counsel for the Underwriters but excluding wages and salaries paid by independent you) reasonably incurred by you in connection herewith.
(j) The Company will apply the net proceeds payable to it from the sale of the Shares for the purposes set forth under "Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
(l) For a period of 120 days after commencement of the public accountants)offering of the Shares by the Underwriters, the Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., sell, contract to sell or otherwise dispose of any Common Shares or rights to purchase any Common Shares, except (i) to the Underwriters pursuant to this Agreement, (ii) upon the exercise of currently outstanding warrants and options, and each report on Form 10-KSB (iii) not more than 400,000 Common Shares to be issued in connection with the acquisition of businesses by the Company, provided that the recipients of Common Shares referred to in clause (iii) agree that they will not sell such Common Shares prior to 120 days after the commencement of the public offering of the Shares by the Underwriters.
(m) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing quarterly unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(o) The Company will timely file with the National Association of Securities Dealers Automated Quotation System National Market ("Nasdaq National Market") all documents and notices required by the Nasdaq National Market of companies that have issued securities that are consolidatedtraded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
Appears in 1 contract
Sources: Underwriting Agreement (Continental Waste Industries Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective as promptly as possible thereafter; and it will notify you, promptly after it shall receive notice thereof, of the time when the Registration Statement or any subsequent amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed. The Company will (i) prepare and timely file with the Commission as promptly as practicable under Rule 424(b) of the Rules and will not Regulations, a Prospectus containing information previously omitted at any time, whether before or after the effective date time of effectiveness of the Registration StatementStatement in reliance on Rule 430A of the Rules and Regulations, (ii) not file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, copy or to which the Representative Representatives shall have reasonably objected within two (2) business days after its receipt thereof in writing or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations, (iii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. In case any Underwriter is required to deliver a prospectus nine months or more after the effective date of the Registration Statement in connection with the sale of the Shares, it will prepare promptly upon request, but at the expense of such Underwriter, such amendment or amendments to the Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(b) As soon as the The Company is advised or obtains knowledge thereof, the Company will shall advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with Representatives promptly of any request of the Commission and, if the provisions for amendment 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 post-effective amendment to the Registration Statement becomes effectiveor for supplement to the Prospectus or for any additional information, (ii) or of the issuance by the Commission or any state securities commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or the use of any Preliminary Prospectus or the Prospectus or of the suspension of the qualification or registration of any Shares for offering in any jurisdiction, or of the institution or threatening of any proceedings for any of the foregoing purposes. The Company shall use its best efforts to prevent the issuance of any such stop order preventing or suspending the effectiveness of the Registration Statement or the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; Prospectus and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly as soon as possible the lifting of such orderthereof, if issued.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing will cooperate with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Representatives in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, endeavoring to qualify the Securities Shares for offering and sale under the securities laws of such jurisdictions as the Representative Representatives may designate to permit the continuance of sales reasonably have designated in writing and dealings therein for as long as may be necessary to complete the distribution, and shall will make such applications, file such documents documents, and furnish such information as may be reasonably required for such that purpose; provided, however, provided the Company shall not be required to qualify as a foreign corporation the Shares for sale under the securities laws of any jurisdiction or to file a general or limited consent to service of process in any such jurisdictionjurisdiction in which the Company would be required thereby to qualify to do business or in which the Company would thereby become subject to taxation. In each jurisdiction where such qualification shall be effected, the The Company will, unless the Representative agrees that from time to time, prepare and file such action is not at the time necessary or advisablestatements, use all reasonable efforts to file reports, and make such statements or reports at such times other documents, as are or may reasonably be required by the laws of such jurisdiction to continue such qualificationqualifications in effect for so long a period as the Representatives may reasonably request.
(fd) During The Company will deliver to the Representatives, or such other entity or person as the Representatives may designate, from time to time, without charge, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to the Representatives, or such other entity or person as the Representatives may designate, without charge, during the period when delivery of a Prospectus is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, without charge, four signed copies of the Registration Statement as originally filed and all amendments thereto, including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibits, and of all amendments thereto, without charge, as the Representatives may reasonably request.
(e) The Company shall comply with the Securities Act and the Rules and Regulations thereunder and the Exchange Act and the Rules and Regulations thereunder so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and in the Prospectus. If during the period in which a prospectus is required by law to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of an Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Actdealer, any event shall have occurred occur or condition shall exist as a result of which, in the opinion judgment of counsel for the Company or Underwriters' Counselin the opinion of the Representatives, it becomes necessary to amend the Prospectus, as then amended Registration Statement or supplemented, includes an amend or supplement the Prospectus so that the Prospectus will not include any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time the Prospectus is delivered, not misleading, or or, if it is necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with the Actany law, the Company will notify the Representative promptly and shall prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of to the Act, each such amendment Registration Statement or supplement to the Prospectus as may be satisfactory necessary to Underwriters' Counsel, and correct such untrue statement or omission or so that the Prospectus will comply with such law; provided that the Company will furnish to shall make such changes in any such document as the Underwriters copies upon advice of such amendment or supplement counsel may reasonably request.
(f) The Company will make generally available to its shareholders, as soon as available it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and in Rule 158 of the Rules and Regulations thereunder and will advise the Representatives, and such quantities as of the Underwriters may requestwhich request the foregoing from the Company, in writing when such statement has been so made available.
(g) During The Company will, for a period of three (3) years after from the date hereofClosing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (shareholders or 10-K, as the case may be), including each amendment thereto, a copy of filed with any report on Form 10-QSB (securities exchange or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report interdealer quotation system pursuant to the Representative and requirements of such exchange or system or with the Commission pursuant to the Securities Act or the Exchange Act. The Company will deliver to the Representative:Representatives similar information with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(h) No offering, sale or other disposition by the Company of any Common Shares or any other class of securities or warrants or options to purchase any class of securities of the Company will be made during the period beginning on the date of this Agreement and ending 120 days after the later of the Closing Date or the latest Option Closing Date, directly or indirectly, otherwise than hereunder or with the prior written consent of the Representatives.
(i) every The Company will apply the net proceeds from the sale of the Shares being sold by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) If at any time during the 90 day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common 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 prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(k) The Company shall cause the Shares to be included in the Nasdaq National Market and every material news item shall comply with all applicable rules of the Nasdaq National Market in connection with the transactions contemplated hereby.
(l) The Company will not take, directly or article indirectly, any action designed to, or which has constituted, or which might reasonably be expected to, cause or result in stabilization or manipulation of interest to the financial community in respect price of the Common Shares of the Company, or its affairs which was released or prepared by or on behalf of the Company; and.
(iim) any additional information The Company shall timely file all reports, forms and other documents as may be required from time to time under the Securities Act and the Rules and Regulations and the Exchange Act and the rules and regulations promulgated thereunder, and all of a public nature concerning the Company (such will comply as to form and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedsubstance with applicable requirements under those acts.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters several Agents as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall become effective, if not previously have been advised already effective, and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and you promptly and, if requested by you, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission 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 post-effective amendment to the Registration Statement becomes effective, (ii) when the Prospectus and any Prepricing Prospectus have 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, any Prepricing Prospectus or the Prospectus or for additional information, (iv) 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 the 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 any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purposesuch purposes, (iv) of the receipt of any comments from the Commission; and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Commission for Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of and any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prepricing Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus and any Prepricing Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus and any Prepricing Prospectus (as then amended or supplemented) to comply with the ActAct 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 notify make every reasonable effort to obtain the Representative promptly and prepare and file withdrawal or lifting of such order at the earliest possible time.
(b) The Company will furnish to you, without charge, two conformed copies of the Registration Statement as originally filed with the Commission an appropriate and of each amendment or supplement in accordance with Section 10 thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such additional number of conformed copies of the Act, Registration Statement as originally filed and of each such amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462(b) Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment Prospectus or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
Prepricing Prospectus unless (i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.you shall have previously been advised
Appears in 1 contract
Sources: Agency Agreement (Advanced Lighting Technologies Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) a. The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission 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 Exchange Act before termination of the offering of the Preferred Shares and Redeemable Warrants by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) b. As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, 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 post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) c. The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) d. The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Orri▇▇, ▇▇rr▇▇▇▇▇▇ & ▇utc▇▇▇▇▇ ▇▇▇ ("Underwriters' Counsel") shall object.
(e) e. The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) f. During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, 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 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative 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 satisfactory to 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 request.
g. As soon as practicable, but in any event not later than forty-five (g45) 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 occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
h. During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, 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 certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial 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, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
i. The Company will maintain a transfer agent and warrant agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
j. The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
k. On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable Lock-up Agreements pursuant to which, for a period of twelve (12) months from the effective date of the Registration Statement, each of the Company's officers, directors and stockholders and all holders of securities convertible into, exercisable or exchangeable for shares of Common Stock, has agreed (i) not to, directly or indirectly, issue, offer, agree or offer to sell, sell, grant an option for the purchase or sale of, transfer, pledge, assign, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or options, rights, warrants or other securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for shares of Common Stock (whether or not beneficially owned by any such holder), or any beneficial interest therein without the prior written consent of the Company and the Representative, except in connection with private transactions (not involving a public offering) in which the transferee(s) agrees in writing to be bound by the terms of a Lock-up Agreement and (ii) to waive all rights to request or demand the registration pursuant to the Act of any securities of the Company which are registered in the name of or beneficially owned by any such holder. On or before the effective date of the Registration Statement, the Company shall also provide the Representative with true original copies of duly executed, legally binding and enforceable Lock-up Agreements pursuant to which, for a period of twenty-four (24) months following the effective date of the Registration Statement, _____________, _________________, and ______________ have agreed not to, directly or indirectly, without the prior written consent of the Representative and the Company, issue, offer, agree or offer to sell, sell, grant an option for the purchase or sale of, transfer, pledge, assign, hypothecate, distribute or otherwise encumber or dispose of more than ten percent (10%) of any securities of the Company which are registered in the name of or beneficially owned by any such holder, without the prior written consent of the Representative and the Company. During the eighteen (18) month period commencing with the effective date of the Registration Statement, none of the Company or any present or future subsidiaries or affiliates shall sell or offer for sale any of their securities, except pursuant to options existing on the date hereof, without the prior written consent of the Representative. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing all of the securities subject to the Lock-up Agreements and to place appropriate "stop transfer" orders on the Company's stock ledgers.
l. Neither the Company, nor any of its respective officers, directors, stockholders, nor any of its affiliates (within the meaning of the 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 price of any securities of the Company.
m. The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
n. The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
o. The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(k) and 6(l) hereof.
p. The Company shall cause the Common Stock and Redeemable Warrants to be listed on AMEX and, for a period of seven (7) years from the date hereof, use its best efforts to maintain the AMEX listing of the Common Stock and the Redeemable Warrants to the extent outstanding.
q. For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock and Redeemable Warrants (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
r. As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Mood▇'▇ ▇▇▇ Manual and to continue such inclusion for a period of not less than seven (7) years.
s. The Company hereby agrees that it will not, for a period of eighteen (18) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell any option, warrant or other contract right (x) at an exercise price that is
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall not have objected within two previously approved in writing (2such approval not to be unreasonably withheld or delayed) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon 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 post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments 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 the 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 any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the -------- ------- Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain 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 requestwithdrawal thereof.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders and will deliver to the Representative:Representatives, (i) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its shareholders as such, (ii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange and (iii) from time to time such other information concerning the Company as you may request.
(h) The Company will use its best efforts to list the Stock on the Nasdaq National Market.
(i) every The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the undersigned in accordance with the Rules and Regulations) during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set (except with prior written consent of each of the Representatives), other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(m) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act and the Exchange Act.
(n) Prior to the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(o) Prior to the Closing Dates the Company will issue no press release or other communications directly or indirectly and every material news item or article of interest hold no press conference with respect to the Company, the financial community in respect condition, results of operation, business, prospects, assets or liabilities of the Company, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the Closing Date, the Company will use its affairs which was released best efforts to provide to you copies of each press release or prepared by other public communications with respect to the financial condition, results of operations, business, prospects, assets or on behalf liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
(p) During the period of five (5) years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholder's equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; and
(ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, or the NASD or any additional securities exchange; (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock; and (iv) from time to time, such other information of a public nature concerning the Company as you may reasonably request.
(q) The Company has not distributed and, prior to the later of (i) the Closing Date and (ii) the completion of the distribution of the Stock, will not distribute any future subsidiary) offering material in connection with the offering and sale of the Stock other than the Registration Statement or its businesses which any amendment thereto, any Preliminary Prospectus or the Representative may request. During such three (3)-year periodProspectus or any amendment or supplement thereto, or other materials, if any, permitted by the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedAct.
Appears in 1 contract