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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 (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 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(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 Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective 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 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 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 (i) when the Registration Statement, as amended, becomes effective, 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 threat of the initiation, or the 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 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 any state securities commission authority 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 fifth 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 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 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 Representatives or ▇▇▇▇▇▇Mintz, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Underwriters' Counsel") ), shall objectobject 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 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 of the Registration Statement 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 RepresentativeRepresentatives, 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 StatementEffective Date.
(h) During a period ending on the earlier of (i) 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, stockholders annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the RepresentativeRepresentatives:
(i) concurrently with furnishing such quarterly reports to its stockholders, financial statements of income of the Company for each quarter quarter, in the form furnished to filed with the Company's stockholders and certified by the Company's principal financial or accounting officerCommission;
(ii) concurrently with furnishing such 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 certificate 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, affairs which was released or prepared by or on behalf at the direction of the Company; and
(vi) 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 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(ies) subsidiary are consolidatedrequired 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 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 StockStock for so long as the Company has a class of equity securities registered under the Exchange Act.
(j) The Company will furnish to the Representative Representatives or on the Representative's Representatives' order, without charge, at such place as the Representative Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two (2) of which 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 of the Registration StatementEffective Date, in each case as soon as available and in such quantities as the Representative 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 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. 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, the Subsidiary, Company nor any of their respective its officers, directors, directors or stockholders, nor any of their respective affiliates or Associates (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 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 Shares in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No 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 (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 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 Representative 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 letter to be furnished pursuant to Sections Section 6(j) hereof.. -------
(p) The Company shall use its best efforts to cause the Common Stock to be quoted on Amex and, Nasdaq or a national securities exchange for a period of five seven (57) years from the date hereof, and shall use its best efforts to maintain the Amex Nasdaq quotation or exchange listing of the Common Stock to the extent outstanding.
(q) For a period of five three (53) years from the Closing Date, on a quarterly basis, the Company shall instruct the Transfer Agent to furnish to the Representative Representatives, 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 list of Depository Trust Company "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Companyparticipant holders."
(r) As The Company hereby agrees, 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 from the effective date of the Registration StatementEffective 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 for until the earlier of (i) seven (7) years from the Effective Date and (ii) the first date when the Company no longer has a period class of not less than five (5) yearsequity securities registered under the Exchange Act.
(s) The Company hereby agrees that it will notthat, for a period of twelve thirteen (1213) months from the effective date Effective Date, it will not, without the written consent of the Registration StatementRepresentatives, 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 similar arrangement permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell sale of any option, warrant shares of Common Stock or other contract right securities of the Company (xi) in an amount greater than an aggregate of 1,351,923 shares of Common Stock, (ii) at an exercise or sale price that is per share less than the greater of the public offering price of the Shares set forth herein and either the fair market value of the Common Stock 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 Offering Price and (iii) upon payment of less than the existence full purchase or exercise price for such shares of stock appreciation rights, phantom options Common Stock or similar arrangementsother securities of the Company.
(t) Until the completion of the distribution of the SecuritiesShares, 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 Representative 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.
(u) For a period equal to Until the lesser earlier of (i) five seven (57) years from the date hereof, and (ii) the sale to the public of the Representative's SecuritiesRepresentatives' 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 SB-2 S-3 (or other appropriate form) for the registration under the Act of the Representative's SecuritiesRepresentatives' Shares.
(v) For 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 five eighteen (518) years months after the effectiEffective 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 follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, 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 effective; or 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 purpose; (iv) of the receipt of any comments from the Commission; and such purposes, (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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Shares 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 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.
(gi) As soon 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12-month period beginning on the day after the end offering or sale of the fiscal quarter of Shares, as contemplated by this Agreement and the Company during which the effective date of the Registration Statement occurs (ninety (90) days Prospectus, in any jurisdiction where it is not now so subject. In the event that the end of such fiscal quarter is the end qualification of the Company's fiscal year)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, in holders a consolidated earnings statement covering a twelve-month period commencing with the manner specified first fiscal quarter after the “effective date” (as defined in Rule 158(b158 promulgated under the Act) of the Rules Registration Statement and Regulationsending not later than 15 months thereafter, and to as soon as practicable after the Representativeend of such period, an which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy the provisions of Section 11(a) of the Act and the provisions of Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by 158 promulgated under 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 five (5) years after the date hereof, it being understood and agreed that such earnings statement shall be deemed to have been made available by the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis is in compliance with its reporting obligations pursuant to the extent that Exchange Act, if such compliance satisfies the accounts conditions of the Company and its subsidiary(ies) are consolidatedRule 158, and will be accompanied by similar financial statements for any significant subsidiary which if such earnings statement 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 made available 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 For a period commencing on the effective date hereof and ending on the 90th day after the date of the Registration StatementProspectus, 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, (i) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into 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, distributeStock, or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on behalf of the Underwriters. On Notwithstanding the foregoing, if (A) during the last 17 days of the 90-day lock-up period, the Company issues an earnings release or before other press release of material information or a material event relating to the Closing DateCompany 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 deliver instructions 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 Transfer Agent authorizing it 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 place appropriate legends the Company’s employee benefit plans and (5) beginning on the certificates representing day that is 61 days from the securities 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 Agreements 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 place appropriate stop transfer orders on furnish to the Company's ledgersRepresentatives 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 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 director.
(l) Neither Prior to the CompanyClosing Date or the Additional Closing Date, as the case may be, the SubsidiaryCompany will furnish to you, nor as promptly as possible, copies of any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning unaudited interim consolidated financial statements of the Rules Company and Regulationsits 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 takecomply 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 todesigned, or which might in the future 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 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 RegulationsShares.
(o) The Company shall furnish to will timely file with the Representative as early as practicable prior to each of the date hereof, the Closing Date NASDAQ Global Select Market (“NASDAQ”) all documents 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 notices required by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereofNASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(p) The Company has engaged and shall cause the Common Stock to be quoted on Amex maintain, at its expense, a transfer agent 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 if 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 (Crouse Lawrence D), Underwriting Agreement (Heartland Express 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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior written consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 no event beyond one year after the Underwriters may requestdate hereof.
(gk) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hl) During If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a period termination under Section 11 or 12 hereof) or if this Agreement shall be terminated by the Underwriters because of five 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 (5including travel expenses and reasonable and documented fees of counsel for the Underwriters, excluding wages and salaries paid by you) years after 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 date hereofUnderwriters, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports not reimburse you for any individual fee or expense in excess of earnings, 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 $10,000 without having received 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated’s prior written consent.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies 90th day after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into 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, distributeStock, or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock. On , (2) enter into any swap or before 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 shall deliver instructions 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 Transfer Agent authorizing it to place appropriate legends Company’s equity incentive plans or other employee compensation plans in effect on the certificates representing 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 subject on a pro rata basis to the Lock-up Agreements and to place appropriate stop transfer orders on all holders of a class or series of outstanding securities of the Company's ledgers, (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.
(lo) Neither Prior to the CompanyClosing Date or the Additional Closing Date, as the case may be, at the reasonable request of the Underwriters, the SubsidiaryCompany will furnish to you, nor as promptly as possible, copies of any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning unaudited interim consolidated financial statements of the Rules Company and Regulationsits subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will takecomply 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 todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before The Company will timely file with NASDAQ all documents and notices required by the effective date NASDAQ of companies that have or will issue securities that are traded on 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) yearsNASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 (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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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) As soon 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 practicable, but 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 not later than fortythat 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-five issuer transactions under (45or obtain exemptions from the application of) days 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 years after the end date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of the 12Rule 158), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hl) During a the period of five (5) ending three years after from the date hereof, the Company will promptly furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters if not otherwise available on E▇▇▇▇, and will deliver to the Representative:
(i) concurrently with furnishing such a copy of each proxy statement, quarterly reports to its stockholders, statements of income or annual report or other report 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 shareholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request.
(and m) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe 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) are consolidated, and will be accompanied reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(in) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jo) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 90th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 Company shall deliver instructions to form of Exhibit A hereto (the Transfer Agent authorizing it to place appropriate legends on “Lock-Up Agreements”); notwithstanding the certificates representing foregoing, if (1) during the securities subject to last 17 days of the Lock-up Agreements and Up Period, the Company issues an earnings release or announces material news or a material event relating to place appropriate stop transfer orders 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 Company's ledgerslast 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.
(lp) Neither Prior to the CompanyClosing Date or the Additional Closing Date, as the case may be, the SubsidiaryCompany will furnish to you, nor if not otherwise available on E▇▇▇▇, as promptly as possible, copies of any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning unaudited interim consolidated financial statements of the Rules Company and Regulationsits subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will takecomply 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 todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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) yearsShares.
(s) The Company hereby agrees will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that it have or 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 securities that is less than the greater of the public offering price of the Shares set forth herein and the fair market value are traded 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 arrangementsNASDAQ.
(t) Until the completion of the distribution of the Securities, the The Company shall notengage and maintain, without at its expense, a transfer agent and, if necessary under the prior written consent jurisdiction 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 incorporation or the offering contemplated herebyrules of any national securities exchange on which the Common Stock is listed, other than trade releases issued in a registrar (which, if permitted by applicable laws and rules may be the ordinary course of same entity as 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 formtransfer agent) for the registration under the Act of the Representative's SecuritiesCommon Stock.
(v) For a period of five (5) years after the effecti
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 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 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 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 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 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 or electronically, (i) when the Registration Statement, as amended, becomes effectiveeffective 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, or the 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 any state securities commission authority 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 fifth 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 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 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 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 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.
(gf) As soon as practicable, but in any event not later than forty-five (45) 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 (ninety (90) 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 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 Securities 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.
(hg) During a the three-year period of five (5) 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, annual reports (including financial but in any event not later than 45 days after each of the first three quarterly fiscal periods, its unaudited statements audited by independent public accountants) and unaudited quarterly reports of earningsoperations, and cash flows, for such period and its unaudited balance sheet as of the end of such period (or such earlier dates required by the Rules and Regulations. In addition, during the three-year period commencing on the date hereof, the Company will deliver to the Representative:
(i1) concurrently with furnishing making such quarterly reports available to its stockholdersshareholders, statements of income summary financial information 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;
(ii2) concurrently with furnishing such annual reports to its stockholdersshareholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholdersshareholders' equity, equity and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate report thereon of the Company's independent certified public accountants;
(iii3) as soon as they are available, copies of all reports (financial or other) mailed made available by the Company to stockholdersany person who is not an employee of, or consultant to, the Company;
(iv4) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or and/or any securities exchange;
(v5) 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, 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
(vi6) 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 seven-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 subsidiary(ies) subsidiaries are consolidatedrequired to be consolidated under GAAP, and will be accompanied by similar financial statements for any significant subsidiary which that is not so consolidated.
(ih) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under for the jurisdiction of incorporation of Common Stock reasonably satisfactory to the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockRepresentative.
(ji) 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 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.
(kj) 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 duly executed and to place appropriate stop transfer orders on delivered by the Company's ledgersLock-Up Parties.
(lk) Neither the Company, the Subsidiary, nor any of their respective 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.
(ml) The Company shall apply the net proceeds from the sale of the Securities 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.
(nm) The Company shall shall, until at least December 31, 2007, 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 Securities Act, the Exchange Act, 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, Act and the Rules and Regulations.
(on) 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 (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) 30 days prior to the date of the Registration Statement) which that have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 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) 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) two years from the Closing Date, the Company shall furnish cause to be furnished to the Representative directly from the Company's transfer agent, 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 . Such consolidated transfer sheets shall be furnished to the CompanyRepresentative 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.
(rq) 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) Within 30 days after the effective date of the Registration StatementStatement the Company shall, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions descriptions and ▇▇▇▇▇'▇ OTC Manual and endeavor to continue such inclusion for a period of not less than five (5) yearsyears from the effective date of the Registration Statement.
(sr) The Except as contemplated by the Warrant Agreement, without the consent of the Representative, the Company hereby agrees that it will not, not for a period of twelve one (121) months year from the effective date of the Registration Statement, adopt, adopt or propose to adopt or otherwise permit to exist any employee, officer, director, consultant or similar 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 Stocksale; (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 (iiiiv) the existence of stock appreciation rights, phantom options or similar arrangements.
(ts) Until the completion of the distribution of the Underwritten Securities, the Company shall not, not without the prior written consent of the Representative and Underwriters' 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 contemplated herebyOffering, other than trade releases issued that have been approved by Representative's counsel in the ordinary course of the Company's business consistent with past practices with respect to the Company's operationsadvance thereof.
(ut) For a period equal to the lesser of (i) five (5) seven years from the date hereof, hereof and (ii) the sale resale to the public of the Representative's SecuritiesWarrant Shares, the Company will not take any action or actions which may that would prevent or disqualify the Company's use by the Company of Form SB-2 S-1 or Form S-3 (or other appropriate formforms) for the registration of the Warrant Shares under the Act Securities Act.
(u) For a period of two years following the Closing Date, the Company will permit a designee of the RepresentativeRepresentative to observe meetings of the Company's Securitiesboard 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) For a period of five (5) years Prior to the 90th day after the effectiClosing 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 follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 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 Preliminary Prospectus or for additional information. If the Commission or any state securities commission 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 time 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 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 that 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 at the time the Registration Statement becomes effective, whether or not such revised prospectus (ii) if Rule 430A under the Securities Act is required to be employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Securities Act, (iii) of the Rules and Regulations), and will furnish the Representative with copies receipt of any such amendment comments of the Commission, or supplement a reasonable amount of time prior to such proposed filing any request by the Commission for amendments 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 supplements to the time Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement becomes effective, to qualify or of the Securities suspension of qualification of the Shares for offering and or sale under in any jurisdiction or the securities laws initiation 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; providedpurposes and (v) within the period of time referred to in Section 5(h) hereof, 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 change in the Securities in accordance with the provisions hereof and the Prospectuscondition (financial or otherwise), business, prospects, properties, assets, net worth or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event shall have occurred as a result results of which, in the opinion operations of counsel for 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectiunder
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 will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and the provisions time and date of Rule 430A promulgated under any filing of any post-effective amendment to the Act will be relied upon, when 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 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 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. In addition, 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.
(gi) As soon The Company will use its reasonable best efforts to 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering 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 beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Global Market (“Nasdaq”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company (and any future subsidiaryas you may reasonably request, provided that the Company’s obligation pursuant to this Section 5(k) or its businesses which the Representative may request. During such seven-year period, if the Company has an active subsidiary, the foregoing financial statements will shall be on a consolidated basis satisfied to the extent that the accounts 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 its subsidiary(iesthe other Underwriters for all reasonable out-of-pocket costs and expenses (including, without limitation, the fees and expenses of the Underwriters’ outside attorneys) are consolidatedincurred by the Underwriters in connection herewith, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedto exceed $100,000.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 60th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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-Up Agreements”).
(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 shall deliver instructions will furnish to you, as promptly as possible following your request, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before The Company will timely file with Nasdaq all documents and notices required by the effective date Nasdaq of companies that have or will issue securities that are traded on 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) yearsNasdaq.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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, Underwriting Agreement (Leap Therapeutics, Inc.)
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 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 Exchange 1934 Act before termination of the offering of the 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 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 writing, (i) when the Registration Statement, as amended, becomes effective, 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, or the 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 any state securities commission authority 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 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 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 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 (Omnicorder Technologies Inc), Underwriting Agreement (Omnicorder Technologies Inc)
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus Statement has been filed in accordance with said Rule 430A become effective and when any post-effective amendment 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 becomes effective; Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iiiv) 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 any state securities commission of 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 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 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 a reasonable amount of time prior to such proposed filing supplement) or use, as the case may be, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall objectyou have reasonably objected after being so advised.
(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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 (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 several Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, 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 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 Preliminary Prospectus or the Prospectus and 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. If , (iv) of the issuance by the Commission or of any state securities commission shall enter a stop order suspending the effectiveness of the Registration Statement or suspend of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such qualification purposes and (v) within the 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 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 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 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 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 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 Act, the Company will notify the Representative promptly and prepare and file with Securities Act or any other law. If at any time the Commission an appropriate amendment or supplement in accordance with Section 10 of shall issue any stop order suspending 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectiveness of the Registration Statement, the Company shall will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Representative Underwriters with true original copies of duly executedthe form of Prospectus, legally binding in such number as the Underwriters may reasonably request, and enforceable agreements pursuant to whichfile with the Commission such Prospectus in accordance with 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, for a period of twelve (12) months from the effective date “subsidiaries” shall mean all of the Registration Statement, each of the Company's stockholders wholly-owned 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 partially-owned direct 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 indirect subsidiaries 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 (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 Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, 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 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 any state securities commission regulatory authority 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 fifth 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 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 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 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 forty-five (45) 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) 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 five seven (57) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(vi) 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 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(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 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 StockStock 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 Underwriter with true original originally-executed 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 Up Agreements which are in form and substance satisfactory to 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 StockUnderwriter. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent its transfer agent authorizing it such transfer agent to place appropriate legends on the certificates representing the securities of the Company subject to the Lock-up Up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither 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 SubsidiarySubsidiaries, nor any of its or 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.
(mn) 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 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.
(no) 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.
(op) 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 its letter to be furnished pursuant to Sections Section 6(j) hereof.
(pq) The Company shall cause the Units, the Common Stock and the Redeemable Warrants to be quoted on Amex and, the Nasdaq SmallCap Stock Market and for a period of five seven (57) years from the date hereof, use its best efforts to maintain the Amex quotation 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.
(qr) 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, 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.
(rs) 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 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 five seven (57) 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 Firm Securities and the Option Securities, the Company shall not, 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) five three (53) 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.
(vw) For a period of five (5) years after the effectieffective 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 Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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 writing, (i) when the Registration Statement, as amended, becomes effective, 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 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 any state securities commission authority 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 fifth 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 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 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 Underwriter or ▇O▇▇▇▇▇, ▇H▇▇▇▇▇▇▇▇▇ & ▇S▇▇▇▇▇▇▇▇ LLP ("Underwriters' 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 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 forty-five (45) 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) 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 RepresentativeUnderwriter, 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) 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, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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;
(iii) 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;
(iiiii) 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;
(viii) 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
(viiv) 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 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(ies) subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(ivi) The Company will maintain a transfer agent 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 StockStock and Redeemable Warrants.
(j) The Company will furnish to the Representative or on the RepresentativeUnderwriter's order, without charge, at such place as the Representative 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 Representative Underwriter may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative Underwriter with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twelve (12) months from 180 days subsequent to the effective 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 StatementStatement is declared effective under the Securities Act of 1933, each as amended, unless extended for an additional 90 days, the officers and directors of the Company's stockholders , all holders of shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees Stock, agree that it or he or she will not, not directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate 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 Representatives Underwriter 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, 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 (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 will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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) As soon 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 practicable, but 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 not later than fortythat 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-five issuer transactions under (45or obtain exemptions from the application of) days 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 one year after the end 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 the 12Rule 158), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hl) During a the period of five (5) ending three years after from the date hereof, upon receipt of a written request from you, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request.
(and m) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe 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) are consolidated, and will be accompanied reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(in) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jo) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies 90th day after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 Closing 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 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 shall deliver instructions issues an earnings release or announces material news or a material event relating to the Transfer Agent authorizing it Company occurs or (2) prior to place appropriate legends on the certificates representing the securities subject to expiration of the Lock-up Agreements and to place appropriate stop transfer orders Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the Company's ledgerslast 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.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date The Company will timely file with NASDAQ all documents and notices required by NASDAQ 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) yearscompanies that have or will issue securities that are traded on NASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 (Carolina Financial Corp), Underwriting Agreement (Carolina Financial 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 use its best efforts to cause the Registration Statement and any amendments thereto to become effective as under the Act, 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 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 such Prospectus in accordance with Rule 424(b) of the Rules and Regulations by the close of business in New York on the business day immediately succeeding the date of the Pricing Agreement.
(b) The Company will advise the Representatives promptly of 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 Exchange Act before termination of the offering of the 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 filings thereof or to which the Representative Representatives shall have objected reasonably object in writing or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(bc) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise prepare and file with the Representative and confirm Commission, promptly upon the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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) 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 the Commission or any state securities commission 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 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 Stock which differs from the corresponding prospectus on file at the 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) 424 of the Rules and Regulations or any term sheet prepared in reliance on Rule 434 of the Rules and Regulations), and will furnish ) which in the Representative with copies opinion of any such amendment or supplement 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 Representatives may be necessary to complete enable the distribution, several Underwriters to continue the distribution of the Stock 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, will use all reasonable its best efforts to file and make such statements or reports at such times cause the same to become effective as are or may reasonably be required by the laws of such jurisdiction to continue such qualificationpromptly as possible.
(fd) During If at any time after the time effective date of the Registration Statement when a prospectus relating to the Stock is required to be delivered under the Act, 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 of its subsidiaries occurs or supplements thereto. If at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event shall have has 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 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 necessary, at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus (in form and substance satisfactory to counsel to the Underwriters) which will correct such statement or omission; and, in case any Underwriter is required to deliver a prospectus relating to the Stock nine 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 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) As 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 will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements 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 thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the 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 effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(f) The Company will make generally available to its security holders as soon as practicable, but in any event not later than forty-five (45) 60 days after the end close 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 Representativecovered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Act) which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (12as defined in Rule 158) consecutive months after the effective date of the Registration Statement.
(g) The Company will cooperate with the Representatives to enable the Stock to be qualified for sale 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 information 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 to service of process in any such jurisdiction. 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.
(h) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and shall also furnish quarterly summary financial information in reasonable detail which may be unaudited. During a the period of five (5) years after from the date hereof, the Company will furnish deliver to the Representatives and, upon request, to each of the other Underwriters, copies of each annual report of the Company and each other report furnished by the Company to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, shareholders; and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholdersRepresentatives, 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 any other reports (financial or other) mailed which the Company shall publish or otherwise make available to stockholders;
(iv) any of its security holders as such, and as soon as they are available, copies of all any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;
(v) every press release and every material news item exchange 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedNASD.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under file with the jurisdiction Nasdaq National Market all documents and notices required by the Nasdaq National Market of incorporation of companies that have issued securities that are traded in the Company, a Registrar (over-the-counter market and quotations for which may be the same entity as the Transfer Agent) for its Common Stockare reported by Nasdaq National Market.
(j) The Company will furnish to use the Representative or on net proceeds received by it from 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 sale of the Registration Statement, Stock in each case as soon as available and the manner specified in such quantities as the Representative may requestProspectus under "Use of Proceeds".
(k) On or before During a period of 180 days from the effective date of the Registration StatementPricing Agreement, 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, without prior written consent of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., directly or indirectly, issuesell, offer to sell, sell, grant an any option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of or enter into any shares of agreement to sell, any Common Stock or securities any security convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of into Common Stock (either except for Common Stock issued pursuant to Rule 144 of the Rules and Regulations reservations, agreements 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 employee benefit plans disclosed in the Registration Statement).
(l) At the time this Agreement is executed, the Company shall have furnished to the Representatives a letter from each officer and director of the Company and _________ addressed to the Representatives, in which each such person agrees that, during a period of 180 days from the date of the Pricing Agreement, such person will not, without the prior written consent of the Representative▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., directly or indirectly, (i) sell, contract or offer to sell, issue, transfer, assign, pledge, distributegrant any option for the sale of, or otherwise dispose of, directly of or indirectlytransfer, any shares of Common Stock beneficially owned by such person or any optionssecurities convertible into or exchangeable or exercisable for such Common Stock, rights whether now owned or warrants hereafter acquired by such person or with respect to which has or hereafter acquires the power of disposition, or file any registration statement under the Act 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 Regulationsforegoing or (ii) will takeenter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation economic consequence of the price ownership 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 whether any such swap or transaction is to be included in Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to continue such inclusion for a period settled by delivery 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 Common Stock 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 securities, in cash 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 arrangementsotherwise.
(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 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 the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 any state securities commission shall enter a stop order or suspend such qualification at any timeexecution and delivery of this 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 fifth 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 the period of five (5) ending three years after from the date hereof, the Company will furnish to its stockholdersyou such information concerning the Company, excluding non-public information, as soon as practicableyou may reasonably request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver provided that the Company shall have no obligation to furnish any documents available to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholderspublic on ▇▇▇▇▇. During the Prospectus Delivery Period, statements of income of the Company for each quarter in the form furnished will file all documents required 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 be filed with the CommissionCommission pursuant to Sections 13, the NASD or any securities exchange;
(v) every press release 14 and every material news item or article of interest to the financial community in respect 15 of the Company, or its affairs, which was released or prepared Exchange Act in the manner and within the time periods required by or on behalf of the Company; and
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedExchange Act.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption "Use of incorporation of Proceeds" in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(j) The If Rule 430A under the Act is employed, the Company will furnish timely file the Prospectus pursuant to Rule 424(b) under 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 requestAct.
(k) On or before For a period of 90 days after the effective date of the Registration StatementProspectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, 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 offer or purchase of, assign, transfer, pledge, hypothecate contract to sell or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either 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 Rule 144 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 of the Rules date hereof and Regulations 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.
(l) Prior to the Closing Date or otherwise) or dispose the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any beneficial interest therein without the prior consent unaudited interim consolidated financial statements of the Representatives Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(collectively, the "Lock-up Agreements"). During the 12 month period commencing on the effective date m) The Company will comply with all provisions of any undertakings contained in the Registration Statement, the .
(n) 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 ofwill not at any time, 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, take any action designed todesigned, or which might in the future 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 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 RegulationsShares.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date will timely file with NASDAQ all documents 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 notices required by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereofNASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(p) The Company shall cause 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 to is listed, a registrar (which, if permitted by applicable laws and rules may be quoted on Amex and, the same entity as the transfer agent) 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 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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and the provisions time and date of Rule 430A promulgated under any filing of any post-effective Registration Statement or any amendment or supplement to the Act will be relied upon, when Base Prospectus or the Pre-Pricing 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, the Base Prospectus, the Pre-Pricing 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(g) below, of any request by material adverse change, or any development involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement, the Pre-Pricing 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 Pre-Pricing Prospectus and 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 any state securities commission 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) of the Act.
(b) The Company will furnish to you, without charge, two conformed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto.
(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 fifth business day after the effective date of the Registration Statement, the Pre-Pricing Prospectus or the Prospectus that may, in the reasonable judgment of the Company, Iridium 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 Pre-Pricing Prospectus (including or to the Prospectus to you, counsel for Underwriters and Iridium and obtain your and Iridium’s consent prior to filing any revised prospectus which the Company proposes for use by the Underwriters in connection of those with the offering of the Securities Commission; which differs from the corresponding prospectus on file at the 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 a reasonable amount of time prior to such proposed filing or use, as the case may be, and consent will not file any such prospectus to which the Representative be unreasonably withheld or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall objectdelayed.
(e) The Company shall endeavor will not make any offer relating to the Common Stock that constitutes or would constitute a free writing prospectus (as defined in good faith, in cooperation Rule 405 of the Act) or a portion thereof required to be filed by the Company with the Representative, at Commission 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, retained by the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service under Rule 433 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 qualificationAct.
(f) During Prior to the time when a prospectus is required to be delivered under the Actexecution and delivery of this Agreement, the Company shall use all reasonable efforts has delivered or will deliver to comply you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Pre-Pricing Prospectus. Consistent with all requirements imposed upon it by the Act and provisions of Section 5(g) hereof, the Exchange ActCompany consents to the use, 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 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 Pre-Pricing Prospectus so furnished by the Company.
(g) 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 amendments amendment or supplements 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 when a prospectus relating prior to the Securities is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the reasonable 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 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.
(h) 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.
(gi) As soon The Company will cooperate with the Representatives 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 practicablethe Representatives 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, but that in no event shall the Company be obligated to (i) qualify to do business in any event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject; or (ii) subject it to taxation 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 (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 Except in the case of termination under Section 11 or before Section 12 hereof, if this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof, or if this Agreement shall be terminated by the effective 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.
(l) 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 Pre-Pricing Prospectus and the Prospectus.
(m) For a period of 90 days after the date of the Registration StatementProspectus (the “Lock-Up Period”), 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, (1) offer to sellfor 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, (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, or (3) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., and the Company and Iridium agree to cause each officer, director or stockholder of the Company or Iridium, respectively, 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-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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., on behalf of the Underwriters, waives such extension in writing. The foregoing restrictions shall not apply to: (a) the offer and sale of shares of Common Stock to the Underwriters pursuant to this Agreement, (b) the grant an option or the exercise of stock options or other securities convertible into or exchangeable for shares of Common Stock granted pursuant to the Company’s stock option, stock bonus or other stock plans or arrangements in effect as of the date hereof and as contemplated for Iridium officers following the closing of the Acquisition (including, but not limited to, the Company’s 401(k) plan and the 2009 Stock Incentive Plan), (c) the conversion into shares of Common Stock of the promissory note, which ▇▇▇▇▇▇▇▇▇ & Co. Europe Limited purchased from Iridium on or about October 24, 2008, (d) the offer and sale of shares of Common Stock or warrants as consideration for the sale purchase or purchase ofexchange of the Company’s warrants from certain warrantholders in the Exchanges (as defined in the Prospectus) and the Forward Purchases (as defined in the Prospectus), assign(e) the exercise of currently outstanding warrants, transferwarrants issued in the Exchanges or securities convertible into or exchangeable for shares of Common Stock, pledge(f) the issuance of shares of Common Stock to holders of common units in Iridium in connection with the Acquisition and (g) the issuance of Common Stock or warrants to Motorola Inc. (“Motorola”) or to any third party to which Motorola has assigned its intellectual property rights under certain license agreements between Motorola and Iridium (the “Motorola Assignee”); provided, hypothecate that Motorola and/or the Motorola Assignee agree to similar lock-up agreements for the remainder of the Lock-Up Period. The Company agrees not to file, or otherwise encumber or dispose cause to be filed, during the Lock-Up Period any registration statement, including any amendments to a registration statement, with respect to the registration of any shares of Common Stock or securities convertible intoconvertible, exercisable or exchangeable into Common Stock or any other securities of the Company other than (i) a shelf registration statement that allows for or evidencing any right to purchase or subscribe for any the exercise and resale of 14,368,525 restructured warrants issued in connection with the Exchanges, the resale of 14,368,525 shares of Common Stock underlying such restructured warrants and the resale of 1,244,831 shares of Common Stock issued in the Exchanges, (either pursuant ii) a shelf registration statement to Rule 144 permit holders of 13,526,667 warrants to convert such warrants and receive 13,526,667 shares of Common Stock and (iii) a shelf registration statement to provide for the Rules and Regulations or otherwiseresale of 3,655,500 shares of Common Stock currently held by Banc of America Securities LLC (“Banc of America”), if Banc of America makes a written demand for such registration statement.
(n) or dispose of The Company will not at 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 oftime, 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, take any action designed todesigned, or which might in the future 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 securities of the Shares; provided, that any action by 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 in compliance with the applicable requirements under the Act, the Exchange Act, and the Rules and RegulationsU.S. securities laws shall be deemed to be in compliance with this provision.
(o) The Company shall furnish to will ensure that the Representative as early as practicable prior to each of the date hereofShares will, the Closing Date and each Option Closing Dateupon issuance, if any, but no later than two (2) full business days prior thereto, be listed on a copy of the latest available unaudited interim financial statements of national securities exchange selected by 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, Iridium and will timely 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 exchange all documents and notices required by such securities exchange of consideration other than cash; companies that have or (iii) the existence of stock appreciation rights, phantom options or similar arrangementswill issue securities that are traded on such securities exchange.
(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 1 contract
Sources: Underwriting Agreement (Iridium 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 will use its best efforts to cause the Registration Statement and any amendments thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and the provisions time and date of Rule 430A promulgated under any filing of any post-effective amendment to the Act will be relied upon, when 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 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 material 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 General Disclosure Package (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the General Disclosure Package (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 Registration Statement 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 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. In addition, 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.
(gi) As soon The Company will cooperate with you and counsel for the Underwriters in connection with the registration or 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 practicable, but 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 Securities; provided that in no event shall the Company be obligated to qualify to do business in any event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering 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. 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 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 beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, upon your request, the Company will furnish to its stockholdersyou and to each of the other Underwriters as requested, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request.
(and l) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof, other than clause (iv)) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe other Underwriters for all reasonable out-of-pocket costs and expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters) are consolidated, and will be accompanied not to exceed $100,000 reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 under the jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 90th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date hereof or pursuant to currently outstanding options, warrants or rights, provided that such securities have not been amended since the date of this Agreement to increase the Registration Statementnumber of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the Company shall not, without the prior written consent term of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distributesuch securities), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 (other than the filing of a registration statement on 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 III hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit B hereto (the “Lock-Up Agreements”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanySecurities.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date The Company will timely file with NASDAQ all documents and notices required by NASDAQ 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) yearscompanies that have or will issue securities that are traded on NASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 1 contract
Sources: Underwriting Agreement (Adamis Pharmaceuticals Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters you as follows:
(a) The If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective under the 1933 Act before the offering of the Shares may commence, the Company shall will use its best efforts to cause the Registration Statement and any amendments thereto or such post-effective amendment to become effective under the 1933 Act as soon as possible. If the Registration Statement has become effective and the Prospectus contained therein omits certain information at the time of effectiveness pursuant to Rule 430A of the 1933 Act Rules and Regulations, the Company will file a prospectus including such information pursuant to Rule 497(h) of the 1933 Act Rules and Regulations, as promptly as practicable and will not at any timepracticable, whether before but no later than the second business day following the earlier of the date of the determination of the offering price of the Shares or the date the Prospectus is first used after the effective date of the Registration Statement. If the Registration Statement has become effective and the Prospectus contained therein does not so omit such information, the Company will file any amendment a Prospectus or certification pursuant to Rule 497(c) or (j), as the case may be, of the 1933 Act Rules and Regulations as promptly as practicable, but no later than the fifth business day following the date of the later of the effective date of the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination commencement of the public offering of the Shares by after the Underwriters effective date of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected 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 Registration Statement. The Company will advise the Representative and you promptly and, if requested by you, will confirm the notice such advice in writing (i) when the Registration Statement, as amended, becomes Statement or such post-effective amendment has become effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, (ii) when the Prospectus has been timely filed pursuant to Rule 497(c) or Rule 497(h) of the 1933 Act Rules and Regulations or (iii) when the certification permitted pursuant to Rule 497(j) of the 1933 Act Rules and Regulations has been timely filed, whichever is applicable.
(b) The Company will advise you promptly and, if requested by you, will confirm such advice in accordance with said Rule 430A and when writing: (i) of any post-effective request made by the Commission for amendment of or a supplement to the Registration Statement becomes effective; Statement, including a Rule 462(b) Registration Statement, the Prospectus or any Prepricing Prospectus (or any amendment or supplement to any of the foregoing) or for additional information, (ii) of the issuance by the Commission Commission, any state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official 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 Statement, prohibiting or suspending the use of the Preliminary Prospectus, any Prepricing Prospectus or the Prospectusany sales material (as hereinafter defined), or of any amendment or supplement thereto, or the institution of proceedings for that purpose; (iiinotice pursuant to Section 8(e) of the issuance by the Commission or by any state securities commission 1940 Act, 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 initiationjurisdiction, or the threatening, initiation or contemplated initiation of any proceeding for that purpose; any such purposes, (iviii) of receipt by (A) the receipt Company, any affiliate of the Company or attorney of the Company of any comments other material communication from the Commission; and , or (vB) the Company, any affiliate of the Company or attorney of the Company of any request by other material communication from the Commission for Commission, any amendment state securities commission, any national securities exchange, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official relating, in the case of either clause (A) or (B), to the Company (if such communication relating to the Company is received by such person within three years after the date of this Agreement), the Registration Statement Statement, the Form N-8A, the Prospectus, any Prepricing Prospectus, any Sales Material (as hereinafter defined) (or any amendment or supplement to any of the Prospectus foregoing) or for additional information. If this Agreement, and (iv) within the Commission period of time referred to in paragraph (f) below, of any material, adverse change in the condition (financial or any state securities commission shall enter a stop order other), business, business prospects, properties, net assets or suspend such qualification at any time, results of operations of the Company will make every effort to obtain promptly (other than as a result of changes in market conditions generally) or of the lifting happening of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory any event known to the Representative) or transmit the Prospectus by Company which makes any statement of a means reasonably calculated to result material fact made 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 fifth business day after the effective date of the Registration Statement.
, the Prospectus, any Prepricing Prospectus or any Sales Material (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 foregoing) untrue or which differs from requires the corresponding prospectus on file at the Commission at the time making of any additions to or changes in 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 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 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' CounselStatement, the Prospectus, as then amended any Prepricing Prospectus or supplemented, includes an untrue statement any Sales Material (or any amendment or supplement to any of the foregoing) in order to state a material fact required by the 1933 Act, the 1940 Act or omits to state any material fact required the Rules and Regulations to be stated therein or necessary in order to make the statements thereintherein (in the case of a prospectus or any sales material, in the light of the circumstances under which they were made) not misleading or of the necessity to amend or supplement the Registration Statement, the Prospectus, any Prepricing Prospectus or any Sales Material (or any amendment or supplement to any of the foregoing) to comply with the 1933 Act, the 1940 Act, the Rules and Regulations or any other law or order of any court or regulatory body. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, prohibiting or suspending the use of the Prospectus or any Sales Material (or any amendment or supplement to any of the foregoing) or suspending the qualification of the Shares for offering or sale in any jurisdiction, the Company will use its best efforts to obtain the withdrawal of such order at the earliest possible time. If at any time any national securities exchange, any state securities commission, any arbitrator, any court or any other governmental, regulatory, self-regulatory or administrative agency or any official shall issue any order suspending the effectiveness of the Registration Statement, prohibiting or suspending the use of the Prospectus or any Sales Material (or any amendment or supplement to any of the foregoing) or suspending the qualification of the Shares for offering or sale in any jurisdiction, the Company will use its reasonable best efforts to obtain the withdrawal of such order at the earliest possible time.
(c) Within five years from the date hereof, the Company will not misleading(i) file any amendment (except any post-effective amendment required by Rule 8b-16 of the 1940 Act which is filed with the Commission after the later of (x) one year from the date of this Agreement or (y) the date on which the distribution of the Shares is completed) to the Registration Statement or make any amendment or supplement to the Prospectus, any Prepricing Prospectus or any Sales Material (or any amendment or supplement to any of the foregoing) unless (i) you shall have been previously advised thereof and been given a reasonable opportunity to review such filing, amendment or supplement and have not objected to such filing, amendment or supplement after being so advised or (ii) so long as, in the opinion of counsel for the Underwriter, a Prospectus is required to be delivered in connection with sales of Shares by the Underwriter or dealer, file any information, documents or reports pursuant to the 1933 Act, the 1940 Act or the 1934 Act, without delivering a copy of such information, documents or reports to you, prior to or concurrently with such filing.
(d) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have reasonably requested, copies of each form of any Prepricing Prospectus. 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 Shares are offered by the Underwriter and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this Agreement as reasonably possible and thereafter from time to time, for such period as in the opinion of counsel for the Underwriter a prospectus is required by the 1933 Act to be delivered in connection with sales of Shares by any Underwriter or dealer and for so long a period as you may request for the distribution of Shares, the Company will promptly deliver to the Underwriter and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Company consents to the use of the Prospectus (and of any amendments or supplements thereto) in accordance with the provisions of the 1933 Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law to be delivered in connection with sales of Shares by the Underwriter or any dealer. If during such period of time 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 Registration Statement or the Prospectus (as then amended or supplemented) or should be set forth 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 if it is necessary at any time to supplement or amend the Registration Statement or the Prospectus to comply with the 1933 Act, the 1940 Act, the Rules and Regulations or any other applicable law, rule or regulation, the Company will forthwith notify you of such event, prepare and, subject to the Representative provisions of paragraphs __ above, promptly and prepare and file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate amendment or supplement in accordance with Section 10 thereto and will furnish as promptly as reasonably possible to the Underwriter and dealers, without charge, such number of the Actcopies thereof as they may reasonably request; provided, each however, that if such amendment or supplement is required solely as a result of a material misstatement in or material omission from the information furnished in writing by or on behalf of the Underwriter to be satisfactory to Underwriters' Counsel, and the Company will furnish expressly for use in the Registration Statement or the Prospectus (such information, as described in Section 12 of this Agreement, being referred to herein as the Underwriters copies of "Underwriter Information"), then the Company shall deliver such amendment or supplement at cost.
(f) The Company will cooperate with you and with your counsel in connection with any registration or qualification of the Shares for offering and sale by the Underwriter and by dealers as soon may be required under the applicable securities or Blue Sky laws of such jurisdictions as available you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such quantities registration or qualification for so long as required to complete the Underwriters may requestdistribution of the Shares; provided, however, that the foregoing shall not apply to the extent that the Shares are "covered securities" that are exempt from state regulation of securities offerings pursuant to Section 18 of the 1933 Act.
(g) As soon as practicable, but in any no event not later than forty-five (45) days after the last day of the 18th full calendar month following the end of the 12-month period beginning on the day after the end of the fiscal calendar quarter of the Company during in 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)falls, the Company shall will make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, holders an earnings statement, which need not be audited, which earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158(a) 158 of the 1933 Act 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 the period of five (5) three years after the date hereofhereafter, the Company will furnish or will have furnished to its stockholders, you as soon as practicableavailable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements a copy of income each report 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 shareholders or filed with the Commission, Commission (other than reports on Form N-SAR) or furnished to the NASD or any national securities exchange;
exchange or (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(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") andIf this Agreement shall terminate or be terminated after execution pursuant to any provisions hereof or if this Agreement shall be terminated by the Underwriter because of any inability, if necessary under failure or refusal on the jurisdiction of incorporation part of the CompanyCompany to comply with any material terms in this Agreement or because any of the conditions in Section 10 of this Agreement required to be complied with or fulfilled by it are not satisfied, a Registrar then the Company agrees to reimburse the Underwriter for all out-of-pocket expenses (which may be including reasonable fees and expenses of counsel for the same entity as the Transfer AgentUnderwriter) for its Common Stockincurred by you in connection herewith.
(j) The Company will furnish to direct the Representative or on investment of the Representative's order, without charge, at such place as net proceeds of the Representative may designate, copies offering of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two Shares in accordance in all material respects with the statements under the caption "Use of which copies will be signed and will include all financial statements and exhibits), Proceeds" set forth in 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 The Company will file the requisite copies of the Prospectus with the Commission in a timely fashion pursuant to Rule 497(c) or before Rule 497(h) of the effective date 1933 Act Rules and Regulations, whichever is applicable or, if applicable, will file in a timely fashion the certification permitted by Rule 497(j) of the 1933 Act Rules and Regulations and will advise you of the time and manner of such filing.
(l) The Company will use its best efforts to have the Shares approved, subject to notice of issuance, for trading on the NASD National Market concurrently with the effectiveness of the Registration StatementStatement and to comply with the rules or regulations of the NASD in relation thereto.
(m) Except to the Underwriter as provided in this Agreement or pursuant to any dividend reinvestment plan of the Company described in the Prospectus, the Company shall provide will not directly or indirectly issue, sell, contract to sell or otherwise dispose of, any common shares of the Representative with true original copies Company or any securities convertible into or exercisable or exchangeable for common shares of duly executedthe Company or grant any rights, legally binding and enforceable agreements pursuant options or warrants to whichpurchase common shares of the Company, for a period of twelve (12) months from 180 days after the effective date of the Registration StatementProspectus, each of without your prior written consent.
(n) Except as stated in this Agreement and in 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 StatementProspectus, 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 not take, directly or indirectly, any action designed to, to or which that might in the future reasonably be expected to cause or result in, in stabilization or manipulation of the price of any the Shares in violation of federal 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 Regulationslaws.
(o) The Company shall furnish to will direct the Representative as early as practicable prior to each investment 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 proceeds of the latest available unaudited interim financial statements offering of the Company (which in no event shall be Shares so as to comply with the requirements of a date more than thirty (30) days prior to the date Subchapter M of the Registration Statement) which have been read by the Company's independent public accountantsInternal Revenue Code of 1986, as stated in their letters amended (the "Code"), to be furnished pursuant to Sections 6(j) hereofqualify as a regulated investment company under the Code.
(p) The Company shall will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act of 2002, and w▇▇▇ ▇▇▇ ▇▇▇ ▇▇st efforts to cause the Common Stock Company's directors and officers, in their capacities as such, to be quoted on Amex andcomply with such laws, for a period of five (5) years from rules and regulations, including, without limitation, the date hereof, use its best efforts to maintain the Amex quotation provisions of the Common Stock to the extent outstandingSarbanes-Oxley Act of 20▇▇.
(q) For a period The Company will comply with all provisions 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 any undertakings contained 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 1 contract
Sources: Underwriting Agreement (Harris & Harris Group Inc /Ny/)
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and the provisions time and date of Rule 430A promulgated under any filing of any post-effective amendment to the Act will be relied upon, when 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 material 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Shares 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 General Disclosure Package (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the General Disclosure Package (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 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. In addition, 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.
(gi) As soon 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering 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 beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, upon your request, the Company will furnish to its stockholdersyou and to each of the other Underwriters as requested, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request.
(and l) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof, other than clause (iv)) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe other Underwriters for all reasonable out-of-pocket costs and expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters) are consolidated, and will be accompanied not to exceed $100,000 reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 90th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date hereof or pursuant to currently outstanding options, warrants or rights, provided that such securities have not been amended since the date of this Agreement to increase the Registration Statementnumber of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the Company shall not, without the prior written consent term of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distributesuch securities), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 (other than the filing of a registration statement on 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 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”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date The Company will timely file with NASDAQ all documents and notices required by NASDAQ 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) yearscompanies that have or will issue securities that are traded on NASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 1 contract
Sources: Underwriting Agreement (Adamis Pharmaceuticals Corp)
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and the provisions time and date of Rule 430A promulgated under any filing of any post-effective amendment to the Act will be relied upon, when 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 material 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Shares 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 General Disclosure Package (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the General Disclosure Package (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 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. In addition, 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.
(gi) As soon 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering 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 beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, upon your request, the Company will furnish to its stockholdersyou and to each of the other Underwriters as requested, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request.
(and l) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof, other than clause (iv)) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe other Underwriters for all reasonable out-of-pocket costs and expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters) are consolidated, and will be accompanied not to exceed $100,000 reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 90th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date hereof or pursuant to currently outstanding options, warrants or rights, provided that such securities have not been amended since the date of this Agreement to increase the Registration Statementnumber of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the Company shall not, without the prior written consent term of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distributesuch securities), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 (other than the filing of a registration statement on Form S-8 in connection with the Company’s equity incentive plans and other than the filing of a resale registration statement pursuant to the Securities Purchase Agreement dated February 21, 2020, to which the Company and certain investors are parties) 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 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”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date The Company will timely file with NASDAQ all documents and notices required by NASDAQ 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) yearscompanies that have or will issue securities that are traded on NASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 1 contract
Sources: Underwriting Agreement (Adamis Pharmaceuticals 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 use its best efforts to cause the Registration Statement and any amendments thereto to become effective as under the Act, 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. If the Company elects to rely on Rule 434 under the Rules and Regulations, the Company will prepare an "abbreviated term sheet" that complies with the requirements of Rule 434 under the Rules and Regulations. If the Company elects not to rely on Rule 434, 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 such Prospectus in accordance with Rule 424(b) of the Rules and Regulations by the close of business in New York on the business day immediately succeeding the date of the Pricing Agreement. If the Company elects to rely on Rule 434, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Rule 434 Prospectus complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the Act by the close of business in New York on the business day immediately succeeding the date of the Pricing Agreement.
(b) The Company will advise the Representatives promptly of 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 Exchange Act before termination of the offering of the 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 filings thereof or to which the Representative Representatives shall have objected 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 Company will advise the Representative and confirm the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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 any state securities commission 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 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 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 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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.
(oc) The Company shall furnish to will prepare and file with the Representative as early as practicable prior to each Commission, promptly upon the request 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 indirectlyRepresentatives, any press release amendments or other communication or hold any press conference with respect supplements 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 effectithe
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 the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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 writing, (i) when the Registration Statement, as amended, becomes effective, 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 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 any state securities commission authority 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 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 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 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 Underwriter or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP its counsel ("Underwriters' 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 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) 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectithe
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus Statement has been filed in accordance with said Rule 430A become effective 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 initiationProspectus or
(b) The Company will furnish to you, or the threateningwithout charge, of any proceeding suspending the effectiveness 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 any state securities commission shall enter a stop order supplements to the Registration Statement or suspend such qualification at any timeProspectus which, in the Company will make every effort to obtain promptly reasonable opinion of counsel of the lifting several Underwriters, may be necessary or advisable in connection with the distribution of such orderthe Shares 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 fifth 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 Commission at the time the Registration Statement becomes effectiveand ending not later than 15 months thereafter, 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 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 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 practicable after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during such period, 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 consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 158 under the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statementand will advise you in writing when such statement has been so made available.
(h) During a the period of ending five (5) 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, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 each report from the certificate thereon of independent certified public accountants;
(iii) as soon as they are availableFRB, copies of all reports (financial OCC 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 DBF relating to the financial community in respect of Company or the CompanyBank. The Company agrees to use its best efforts to provide such reports to you including, or its affairswithout limitation, which was released or prepared by or on behalf of the Company; and
(vi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During seeking approval from each such seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis regulatory agency to the extent that the accounts of the Company and its subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedrelease such reports to you.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption "Use of incorporation of Proceeds" in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(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, If information is omitted from 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)pursuant to Rule 430A under the Act, the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after Company will timely file the effective date of Prospectus or a term sheet (as described in Rule 434(b) under the Registration Statement, in each case as soon as available and in such quantities as Act) pursuant to Rule 424(b) under the Representative may requestAct.
(k) On or before For a period of 180 days after the effective date of the Registration StatementProspectus 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 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 sell, contract to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate offer or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either collectively, "Company Securities") or any rights to purchase Company Securities, except (i) to the Underwriters pursuant to Rule 144 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 Rules and Regulations or otherwise) or dispose time 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 effectiveness of the Registration StatementStatement 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, the Company shall notwill furnish to you, without the prior written consent as promptly as possible, copies of any unaudited interim consolidated financial statements of the Representative, sell, contract or offer Company and its Subsidiaries for any period subsequent to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose ofthe 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 shares of Common Stock action that would constitute 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 todesigned, or which might in the future reasonably be expected to cause or result in, stabilization in 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.constitute,
(o) The Company shall furnish will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the Representative as early as practicable prior application of ) the "blue sky" laws of each state where necessary to each 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, 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 provided that in no event shall the Company be as 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 a date more process in suits, other than thirty (30) days prior to the date those arising out of the Registration Statement) which have been read by offering or sale of the Company's independent public accountants, as stated Shares in their letters to be furnished pursuant to Sections 6(j) hereofany jurisdiction where it is not now so subject.
(p) The If at any time during the 90-day period after the first date that any of the Shares are released by you for sale to the public, any rumor, publication, or event relating to or affecting the Company shall cause occur as a result of which in your reasonable opinion 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 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 extent outstandingeffect 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) For a period of five (5) years from The Company shall not invest or otherwise use the Closing Date, proceeds received by 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 from its sale of the Company's securities and Shares, or otherwise conduct its business, in such a manner as would require the Company or any Subsidiary (iiias defined below) a Blue Sky "Trading Survey" for secondary sales to register as an investment company under the Investment Company Act of the Company's securities prepared by counsel to the Company1940, as amended.
(r) As soon as practicableThe Company will maintain a transfer agent and, (i) but in no event more than five (5) business days before if necessary under the effective date jurisdiction of its incorporation or the applicable rules of the Registration StatementNasdaq National Market or any national securities exchange on which the Common Stock is then listed, file a Form 8-A with registrar (which, if permitted by applicable laws and rules, may be the Commission providing same entity as the transfer agent) 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) yearsits Common Stock.
(s) The Company hereby agrees that it will notthis Agreement shall be deemed, for a period of twelve (12) months from 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 effective date Circuit Court of the Registration StatementState of Florida in Pinellas County, adoptFlorida or in the United States District Court for the Middle district of Florida, propose Tampa Division, and further agrees 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 submit itself to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course personal jurisdiction of the Company's business consistent with past practices with respect to the Company's operationssuch courts.
(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 1 contract
Sources: Underwriting Agreement (Fidelity National Corp /Ga/)
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 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 Exchange Act before termination of the offering of the 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 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, 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 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 any state securities commission shall authority 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 fifth 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 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 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 Representative's 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) 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) 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(ies) 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 ("Transfer Agent") 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, which for a period of twelve (12) 13 months from the effective date of the Registration Statement, each the holders of the Company's stockholders all shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees Stock, agree that it or he or she will not, not directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate 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 Representatives Representative (collectively, the "Lock-up Agreements"). During the 12 13 month period commencing on 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. 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 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 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 letters its letter to be furnished pursuant to Sections 6(jSection 6(i) hereof.
(p) The Company shall cause the Common Stock to be quoted on Amex and, and for a period of five seven (57) 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 Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, 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) 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) 30 days after 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 five seven (57) years.
(s) The Company hereby agrees that it will not, not for a period of twelve thirteen (1213) 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 sale of any option, warrant shares of Common Stock or other contract right securities of the Company (xi) in an amount greater than an aggregate of [_______] shares, (ii) at an exercise or sale price that is 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 or sale, (yiii) to any direct or indirect beneficial holder on the date hereof of its executive officers or directors or to any holder more than 10% of 5the issued and outstanding shares of Common Stock at an exercise price greater than 110% or more of the fair market value of the Common Stock; Stock on the date of the grant, (iiiv) 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 (iiivi) permitting the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the SecuritiesShares, the Company shall not, 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 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 will cause the Registration Statement and any amendments Prospectus to be filed as required by Section 3(a) hereof (but only if the Underwriter has not reasonably objected thereto by notice to become effective as promptly as practicable the Company after having been furnished a copy a reasonable time prior to filing) and will not at any time, whether before or after notify the effective date Underwriter promptly of such filing; it will notify the Underwriter promptly of the Registration Statement, file time when any subsequent amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; it will prepare and file with the Commission, promptly upon the Underwriter's request, any document under amendments or supplements to the Act Registration Statement or Exchange Act before termination of Prospectus that, in the offering Representatives' opinion, may be necessary or advisable in connection with the distribution of the Shares by the Underwriters of which Underwriter; and it will file no amendment or supplement to the Representative shall not previously have been advised and furnished with a copy, Registration Statement or Prospectus to which the Representative Underwriter shall have objected or which is not in compliance with reasonably object by notice to the Act, Company after having been furnished a copy at a reasonable time prior to the Exchange Act or the Rules and Regulationsfiling.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative and confirm the Underwriter, promptly after it shall receive notice in writing (i) when the Registration Statementor obtain knowledge thereof, as amended, becomes effective, 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 Statement, 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 jurisdiction, or of the initiation, initiation or the threatening, threatening of any proceeding for that any purpose; (iv) of and it will promptly use its best efforts to prevent the receipt issuance of any comments from the Commission; and (v) of any request by the Commission for any amendment stop order or to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or any state securities commission shall enter obtain its withdrawal if such a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordershould be issued.
(c) The Company shall file Within the time during which a Prospectus (in form and substance satisfactory relating 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 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 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 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 Shares is required to be delivered under the Act, the Company shall use all reasonable efforts to will 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 Shares as contemplated by the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities is required to be delivered under the Act, during such period 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, Prospectus as then amended or supplemented, includes supplemented would include an untrue statement of a material fact or omits omit 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 which they were madethen existing, not misleading, or if during such period it is necessary at any time to amend or supplement the Registration Statement or Prospectus to comply with the Act, the Company will promptly notify the Representative promptly Underwriter and prepare and file with the Commission an appropriate amendment will amend 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 or Prospectus (ninety (90) days in at the event that the end of such fiscal quarter is the end expense 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 Regulationscorrect such statement or omission or effect such compliance.
(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 1 contract
Sources: Underwriting Agreement (Thornburg Mortgage Asset 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 (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A of the Rules and Regulations, use its best all commercially reasonable efforts to cause the ▇▇▇▇▇ & Company ▇.▇. ▇▇▇▇▇▇ Securities Inc. November __, 1996 Page Fourteen Registration Statement and any amendments thereto to become effective as effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use all commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission 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 all 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 all 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 Exchange Act before termination of the offering of the 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 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 prepare and file with the Representative and confirm Commission, promptly upon the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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) 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 any state securities commission shall enter a stop order or suspend such qualification at any timeopinion of the Representatives may be necessary to enable the several Underwriters to continue the distribution of the Stock and will use all commercially reasonable efforts to cause the same to become effective as promptly as possible; provided, however, that the Company will make every effort to obtain promptly expense of 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 preparation and delivery of this Agreement and any prospectus required for use nine (ii9) the fifth business day months or more after the effective date of the Registration StatementStatement shall be borne by the Underwriters required to deliver such prospectus.
(dc) The Company will give If at any time after the Representative notice effective date 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 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 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 relating to the Stock 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 is required to be delivered under the Act, any event shall have occurred relating to or affecting the Company occurs as a ▇▇▇▇▇ & Company ▇.▇. ▇▇▇▇▇▇ Securities Inc. November __, 1996 Page Fifteen 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, therein 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 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; provided, each such amendment or supplement to be satisfactory to Underwriters' Counselhowever, and that 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 expense of the 12-month period beginning on the day preparation and delivery of any prospectus required for use nine (9) months or more after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs shall be borne by the Underwriters required to deliver such prospectus.
(ninety (90d) days 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 event Representatives may reasonably request; provided, however, that the end of such fiscal quarter is the end expense of the Company's fiscal year)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. ▇▇▇▇▇ & Company ▇.▇. ▇▇▇▇▇▇ Securities Inc. November __, the 1996 Page Sixteen
(e) The Company shall will make generally available to its security holdersshareholders as soon as practicable, in but not later than fifteen (15) months after the manner specified in Rule 158(b) effective date of the Rules and Regulations, and to the RepresentativeRegistration Statement, an earnings earning statement which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 Securities Act, covering a period of at least twelve (12) consecutive 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 U.S., Canadian and foreign 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; 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 StatementStatement shall be borne by the Underwriters required to deliver such prospectus. 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 cooperation of the Representatives use all commercially reasonable efforts to obtain the withdrawal thereof.
(hg) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants in reasonable detail which may be unaudited. During a the period of five (5) years after from the date hereof, the Company will furnish deliver to its stockholdersthe ▇▇▇▇▇ & Company ▇.▇. ▇▇▇▇▇▇ Securities Inc. November __, 1996 Page Seventeen Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual reports (including financial statements audited report of the Company and each other report furnished by independent public accountants) and unaudited quarterly reports of earnings, the Company to its shareholders and will deliver to the Representative:
Representatives, (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 any other reports (financial or other) mailed which the Company shall publish or otherwise make available to stockholders;
any of its shareholders as such, (ivii) as soon as they are available, copies of all any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;
exchange and (viii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other publicly available information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative as you may request. During such seven-year period.
(h) The Company will use all commercially reasonable efforts to list the Stock, if subject to official notice of issuance, on the Company has an active subsidiary, Nasdaq National Market concurrently with the foregoing financial statements will be on a consolidated basis to the extent that the accounts effectiveness of the Company and its subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedRegistration Statement.
(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) and registrar 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 sellnot offer, sell, contract to sell or grant an option for the sale or to purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, into or exercisable or exchangeable for or evidencing any right Common Stock (including, without limitation, Common Stock of the Company which may be deemed to purchase or subscribe for any shares 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 [(I) the Company's sale of Common Stock hereunder (either ii) to employees, directors, consultants and advisers of the Company, pursuant to stock option plans, employee stock purchase plans or in connection with other employee compensation arrangements currently in effect, (iii) in connection with acquisitions, research and development agreements or other agreements, in each case with the written consent of Cowen] and (iv) the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus.
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 144 463 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 StatementRegulations, 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 will furnish a copy thereof to the Transfer Agent authorizing it to place appropriate legends on counsel for the certificates representing the securities subject Underwriters and receive and consider its ▇▇▇▇▇ & Company ▇.▇. ▇▇▇▇▇▇ Securities Inc. November __, 1996 Page Eighteen comments thereon, and will deliver promptly to the Lock-up Agreements and to place appropriate stop transfer orders Representatives a signed copy of each report on Form SR filed by it with the Company's ledgersCommission.
(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 will apply the net proceeds from the sale of the Securities Stock as set forth in the manner, and subject to the conditions, set forth description under "Use of Proceeds" in the Prospectus. No portion .
(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 net proceeds will be used, directly or indirectly, to acquire any securities issued by Stock under the CompanySecurities Act.
(n) The Prior to each of the Closing Dates, the Company shall timely file all such reports, forms will issue no press release or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant communications directly or indirectly and hold no press conference with respect to Rule 463 under the Act) from time to time, under the ActCompany, the Exchange Actfinancial condition, and results of operations, business, prospects, assets or liabilities of the Rules and RegulationsCompany, and all such reportsor the offering of the Stock, 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 Regulationswithout your prior written consent.
(o) The Company shall furnish to During 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 Datehereafter, the Company shall will furnish to the Representative at Representatives, and upon request of the Company's sole expenseRepresentatives, to each of the Underwriters: (i) daily consolidated transfer sheets relating to as soon as practicable after the Common Stockend of each fiscal year, (ii) copies of the list Annual Report of holders the Company containing the balance sheet of all 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 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 securities exchange; and (iii) a Blue Sky "Trading Survey" for secondary sales as soon as available, copies of any report or communication of the Company's securities prepared by counsel Company mailed generally 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 holders 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 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 will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 shall issue any state securities commission 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) 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 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 fifth 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 the Company proposes for use by the Underwriters in connection Underwriter and Underwriter’s counsel 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating to the time Common Stock that would constitute an Issuer Free Writing Prospectus without 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 qualificationUnderwriter’s prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 (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 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.
(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 any dealer (the “Prospectus Delivery Period”), and for so long a period as the Underwriter may reasonably 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 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 the Company will furnish to the Underwriters Underwriter, 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.
(gi) As soon The Company will cooperate with the Underwriter and its counsel 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 jurisdictions as practicable, but the Underwriter 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 not later than forty-five that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise the Underwriter promptly in writing. In each jurisdiction in which the Shares have been so registered or qualified, where necessary to permit market making transactions and secondary trading the Company will use its reasonable best efforts to continue such qualifications or registrations (45or obtain exemptions from the application of the Blue Sky laws of such state ) days in effect for a period of one year after the end date hereof.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of the 12Rule 158), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, upon the Underwriter’s written request, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
Underwriter (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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Capital Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as the Underwriter may reasonably request.
(and l) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 11 hereof) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriter because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesreasonable fees and expenses of counsel for the Underwriter, but excluding wages and salaries paid by the Underwriter) are consolidated, and will be accompanied reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedthe Underwriter in connection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies 90th day after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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, and to cause each officer and director of the Company set forth on Schedule II hereto to furnish to the Underwriter, 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 Underwriter waives such extension in writing.
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to the Transfer Agent authorizing it to place appropriate legends on Underwriter, as promptly as possible, copies of any unaudited interim consolidated financial statements of the certificates representing the securities subject Company and its subsidiaries for any period subsequent to the Lock-up Agreements and to place appropriate stop transfer orders on periods covered by the Company's ledgersfinancial statements appearing in the Prospectus.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date The Company will timely file with NASDAQ all documents and notices required by NASDAQ 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) yearscompanies that have or will issue securities that are traded on NASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 1 contract
Covenants and Agreements of the Company. 5.1 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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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) 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 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 shall issue any state securities commission 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, two signed duplicate 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 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 fifth 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 Commission, which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or consent shall not such revised prospectus is required to unreasonably 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 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 objectwithheld.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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(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) As soon 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 practicable, but 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 not later than fortythat 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-five issuer transactions under (45or obtain exemptions from the application of) days 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 end date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of the 12Rule 158), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hl) During a the period of ending five (5) years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD National Association of Securities Dealers, Inc. (the “NASD”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request.
(and m) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof, other than clauses (iv) or its businesses which (v)) or if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe 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) are consolidated, and will be accompanied reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(in) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jo) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 90th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) except for the registration statement on Form S-4 that will be used to consummate the Bristol Bank merger, 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, which shall not be unreasonably withheld and to cause each officer, director and stockholder of the Company set forth on Schedule 3 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-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 the 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 Underwriters, waive such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lq) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(r) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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) yearsShares.
(s) The Company hereby agrees will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that it have or 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 securities that is less than the greater of the public offering price of the Shares set forth herein and the fair market value are traded 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 arrangementsNASDAQ.
(t) Until the completion of the distribution of the Securities, the The Company shall notengage and maintain, without at its expense, a transfer agent and, if necessary under the prior written consent jurisdiction 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 incorporation or the offering contemplated herebyrules of any national securities exchange on which the Common Stock is listed, other than trade releases issued in a registrar (which, if permitted by applicable laws and rules may be the ordinary course of same entity as 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 formtransfer agent) for the registration under the Act of the Representative's SecuritiesCommon Stock.
(v) For a period of five (5) years after the effecti
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and the provisions time and date of Rule 430A promulgated under any filing of any post-effective amendment to the Act will be relied upon, when 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 issuance 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 receipt of any notification from 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 offer 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 otherwise), 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. 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.
(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 you and your counsel been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you and 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 any state securities commission shall enter a stop order or suspend such qualification at any timeexecution and delivery of this 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 all dealers to whom Shares may be sold, 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 fifth 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 such 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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 five years after the Underwriters may requestdate hereof.
(g) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing 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 Statement, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 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 ending five (5) years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq Stock Market ("NASDAQ") or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(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 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 Representative 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 Representative's order, without charge, at such place as part of the Representative may designate, copies Company to perform in all material respects any agreement herein or to comply in all material respects with any of each Preliminary Prospectusthe terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Registration Statement Company agrees to reimburse you and any prethe other Underwriters for all out-effective or postof-effective amendments thereto pocket expenses (two including travel expenses and reasonable fees and expenses of which copies will be signed counsel for the Underwriters, but excluding wages 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, salaries paid by you) reasonably incurred by you in each case as soon as available and in such quantities as the Representative may requestconnection herewith.
(k) On 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.
(l) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or before term sheet (as described in Rule 434(b) under the effective Act) pursuant to Rule 424(b) under the Act.
(m) For a period of 90 days after the date of the Registration StatementProspectus, without your prior written consent, 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, (i) directly or indirectly, issue, offer to sell, sell, grant an option for the sale offer or purchase of, assign, transfer, pledge, hypothecate contract to sell or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant collectively, "Company Securities") or any rights to Rule 144 purchase Company Securities, or file any registration statement under the Act with respect to any of the Rules and Regulations foregoing or otherwise(ii) enter into any swap or dispose of any beneficial interest therein without the prior consent of the Representatives (collectivelyother agreement that transfers, 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 in whole or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose ofin 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 that the foregoing prohibition shall not apply to (1) the sale of the Shares to the Underwriters pursuant to this Agreement, (2) the filing of a registration statement on Form S-8 registering shares of Common Stock issuable pursuant to the Company's stock option plans currently in effect on the date hereof, (3) the issuance, sale or any options, rights grant of options or warrants with respect to any shares of Common Stock. On Stock pursuant to the Company's stock option plans or before arrangements in effect as of the date hereof and described in the Prospectus, and (4) the issuances of shares of Common Stock upon the exercise of options under such plans.
(n) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any monthly period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lo) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(p) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any of the Common Stock to the extent outstandingShares.
(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 will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that it have or 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 securities that is less than the greater of the public offering price of the Shares set forth herein and the fair market value are traded 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 arrangementsNASDAQ.
(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 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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus Statement has been filed in accordance with said Rule 430A become effective and when any post-effective amendment 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 becomes effective; Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iiiv) 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 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 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(c) 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 (A) 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 (B) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review same.
(d) Prior to the Commission or any state securities commission shall enter a stop order or suspend such qualification at any timeexecution and delivery of this 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 or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(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 fifth 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 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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 and required to complete the distribution of the Shares; provided that in such quantities as no event shall the Underwriters may requestCompany 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 general 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 the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(g) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 the period of five (5) ending three years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD National Association of Securities Dealers, Inc. (the "NASD") or The Nasdaq Stock Market or any securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(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 If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a transfer agent ("Transfer Agent"termination under Section 11 hereof) andor if this Agreement shall be terminated by the Underwriters because of any inability, if necessary under failure or refusal on the jurisdiction of incorporation part of the CompanyCompany 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, a Registrar the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (which may be including travel expenses and reasonable fees and expenses of counsel for the same entity as the Transfer AgentUnderwriters but excluding wages and salaries paid by you) for its Common Stockreasonably incurred by you in connection herewith.
(j) The Company will furnish apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the Representative or on statements under the Representative's order, without charge, at such place as the Representative may designate, copies caption "Use 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), Proceeds" in 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 If Rule 430A under the effective 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 the date of the Registration StatementProspectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, 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 offer or purchase of, assign, transfer, pledge, hypothecate contract to sell or otherwise encumber or dispose of or transfer any shares of Class B Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Class B Common Stock (either collectively, "Company Securities") or any rights to purchase Company Securities, except to the Underwriters pursuant to Rule 144 this Agreement and except for grants of options pursuant to the Company's stock option plans in effect as of the Rules date hereof and Regulations except for issuances of shares of Class B Common Stock upon the exercise of options outstanding as of the date hereof under such stock option plans.
(m) Prior to the Closing Date or otherwise) or dispose the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any beneficial interest therein without the prior consent unaudited interim consolidated financial statements of the Representatives Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(collectively, the "Lock-up Agreements"). During the 12 month period commencing on the effective date n) The Company will comply with all provisions of any undertakings contained in the Registration Statement, the .
(o) 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 ofwill not at any time, 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, indirectly take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Class B Common Stock to facilitate the sale or resale 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) hereofShares.
(p) The Company shall cause the will use its best efforts to qualify or register its Class B 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 be quoted on Amex andpermit 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 (5) years from after the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock to the extent outstanding.
(q) For a period The Company will timely file with the National Association of five Securities Dealers Automated Quotation National Market System (5"NASDAQ/NMS") years from all documents and notices required by the Closing Date, NASDAQ/NMS of companies that have or will issue securities that are traded in the Company shall furnish to over-the-counter market and quotations for which are reported by 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 CompanyNASDAQ/NMS.
(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 notnot make any loan or extend any credit to Bindley Western Industries, for a period of twelve (12) months from the effective date of the Registration Statement, adopt, propose to adopt Inc. 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 affiliates (collectively "BWI"), including advancing additional funds to BWI under the revolving credit promissory note described in the Prospectus, and the Company shall, on or directors or to any holder of 5% or more before December 31, 1999, demand repayment from BWI of the Common Stock; (ii) the payment for loan balances outstanding under 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 revolving credit promissory note in the ordinary course of amount set forth in the Company's business consistent with past practices with respect to the Company's operationsProspectus.
(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 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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus Statement has been filed in accordance with said Rule 430A become effective 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) if information is omitted from the Registration Statement pursuant to Rule 430A under the Act, when the Prospectus or term sheet (as described in Rule 434(b) under the Act) has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement, 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 threatened initiation, or the threatening, ) 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 not misleading in any material respect, or of the necessity to amend or supplement the Prospectus 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.
(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 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 any state securities commission shall enter a stop order supplements to the Registration Statement or suspend such qualification at any timeProspectus which, in the Company will make every effort to obtain promptly opinion of counsel of the lifting several Underwriters, may be necessary or advisable in connection with the distribution of such orderthe Shares 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 and (ii) thereafter from time to time for such period as in the fifth 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 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 Act and 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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.
(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 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 or supplement as soon as available and jurisdiction. In the event that the qualification of the Shares in such quantities as any jurisdiction is suspended, the Underwriters may requestCompany shall so advise you promptly in writing.
(g) As soon as practicableThe 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), but in any event which need not later than forty-five (45) days after the end of the 12-be audited, covering a 12 month period beginning on the day commencing 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 and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 the period of ending five (5) years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each report or other) mailed to stockholders;
(iv) as soon as they are available, copies definitive proxy statement of all reports and financial statements furnished to or the Company filed with the CommissionCommission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the NASD National Association of Securities Dealers, Inc. (the "NASD"), the Nasdaq Stock Market 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 affairsmailed to shareholders, which was released or prepared by or on behalf of the Company; and
and (viiii) any additional 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 reasonably request. During such 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(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 If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof ("Transfer Agent") andexcept Section 11), or if necessary under this Agreement shall be terminated by the jurisdiction Underwriters because of incorporation any inability, failure or refusal on the part of the CompanyCompany or any Selling Shareholder to perform any agreement herein or to comply with any of the terms or provisions hereof or to fulfill any of the conditions of this Agreement, a Registrar the Company agrees to reimburse you and the other Underwriters for all out- of-pocket expenses (which may be including travel expenses and reasonable fees and expenses of counsel for the same entity as the Transfer AgentUnderwriters but excluding wages and salaries paid by you) for its Common Stockincurred by you in connection herewith.
(j) The Company will furnish apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the Representative or on statements set forth under the Representative's order, without charge, at such place as the Representative may designate, copies caption "Use 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), Proceeds" in 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 If information is omitted from the Registration Statement pursuant to Rule 430A under the Act, the Company will timely file the Prospectus or before term sheet (as described in Rule 434(b) under the effective Act) pursuant to Rule 424(b) under the Act.
(l) For a period of 180 days after the date of the Registration StatementProspectus 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 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 sell, contract to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate offer or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either collectively, "Company Securities") or any rights to purchase Company Securities, except (i) to the Underwriters pursuant to Rule 144 this Agreement, (ii) pursuant to and in accordance with the Company's stock option plans described in the Prospectus, or (iii) pursuant to the exercise or conversion of warrants, stock options, preferred stock or convertible debentures issued and outstanding at the Rules and Regulations or otherwise) or dispose time 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 effectiveness of the Registration Statement and described in the Registration Statement.
(m) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall notwill furnish to you, without the prior written consent as promptly as possible, copies of any unaudited interim consolidated financial statements of the Representative, sell, contract or offer Company and its Subsidiaries (defined below) for any period subsequent to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose ofthe 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, directly or indirectly, take any shares of Common Stock action that would constitute 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 todesigned, or which might in the future reasonably be expected to cause or result inin or constitute, under the Act or otherwise, 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 security of the Company (which in no event shall be as of a date more than thirty (30) days prior to facilitate the date sale or resale 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) hereofShares.
(p) The Company shall cause the 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 be quoted on Amex andpermit 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 (5) years from after 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 so long as the Closing DateCompany's Common Stock is listed therewith, the Company shall furnish to will comply with 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 filing and other requirements 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 CompanyNasdaq National Market.
(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 notthis Agreement shall be deemed, for a period of twelve (12) months from 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 effective date Circuit Court of the Registration StatementState of Florida in Pinellas County, adoptFlorida or in the United States District Court for the Middle District of Florida, propose Tampa Division, and further agrees 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 submit itself to the Company or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course personal jurisdiction of the Company's business consistent with past practices with respect to the Company's operationssuch courts.
(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 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 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 as promptly as practicable 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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.
(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 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 prepare all amendments thereto (including all financial statements and file 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 thereafter from time to time during the period when delivery of a prospectus relating to the Securities 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 prospectus 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 an appropriate amendment or supplement in accordance with Section 10 of pursuant to ▇▇▇▇▇, except to the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the extent permitted by Regulation S-T.
(e) The Company will furnish make generally available to the Underwriters copies of such amendment or supplement its security holders 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) 60 days after the end close 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 Representativecovered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 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" (12as defined in said Rule 158) consecutive months after the effective date of the Registration Statement.
(hf) 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 reasonably 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 such statements and reports as are or may be required of it as the issuer of the Securities to continue such qualifications in effect for so long a period as the Representatives may reasonably 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 five (5) years after from the date hereof, the Company will furnish deliver to the Representatives and, upon request, to each of the other Underwriters, copies of each annual report of the Company and each other report furnished by the Company to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, shareholders; and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholdersRepresentatives, 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 any other reports (financial or other) mailed which the Company shall publish or otherwise make available to stockholders;
(iv) any of its security holders as such and, as soon as they are available, copies of all any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;.
(vh) every press release and every material news item or article of interest to The Company will use the financial community in respect net proceeds received by it from the sale of the Company, or its affairs, which was released or prepared Securities sold by or on behalf it in the manner specified in the Prospectus Supplement under "Use of the Company; and
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedProceeds".
(i) The Immediately following the execution of this Agreement, the Company will maintain prepare a transfer agent prospectus supplement, dated the date hereof (the "Transfer AgentProspectus Supplement"), containing the public offering price of the Securities, the underwriting discounts and commissions, the plan of distribution of the 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 necessary under required by Rule 424(b), the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockBase Prospectus.
(j) The Company will furnish to During the Representative or period beginning on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement date hereof and any pre-effective or post-effective amendments thereto (two of which copies will be signed continuing through 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 will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any of its subsidiaries which are substantially similar to the Transfer Agent authorizing it to place appropriate legends on Securities (other than the certificates representing Securities) or any securities convertible into or exchangeable or exercisable for any debt securities of the securities subject Company or any of its subsidiaries which are substantially similar to the Lock-up Agreements and Securities or any rights, warrants or options to place appropriate stop transfer orders on purchase any debt securities of the Company's ledgersCompany 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) Neither In accordance with the Company, the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning provisions of the Rules and Regulations) will takeCuba Act, 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 mannerif applicable, and subject without limitation to the conditions, set forth under "Use provisions 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 Section 6 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 indemnify each Underwriter against any action and all losses, claims, damages, liabilities and expenses (including attorneys' fees) arising out of or actions which may prevent or disqualify based upon any violation by the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act Company of the Representative's SecuritiesCuba Act.
(v) For a period of five (5) years after the effecti
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 (or, at your discretion, our 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, or, in your discretion, counsel to the Company, for the registration or qualifi cation 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.
(c) The Company will furnish to you, without charge, four manually-signed copies, and such reasonable number of conformed 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 as promptly as practicable under the 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, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 amendment 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, supplement unless the Company shall not be required have first delivered copies of such amendment or supplement to qualify as a foreign corporation or file a general or limited you and your counsel and you and your counsel shall have given your 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 filing of such jurisdiction to continue amendment or supplement. Any such qualificationamendment or supple ment shall comply with the Act.
(f) During From and after the Effective Date, the Company will deliver to you, without charge, as many copies of the Prospectus or any amendment or supplement thereto as you may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time when a prospectus thereafter as the 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 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 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 Pro spectus 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) As soon as practicableThe Company will promptly pay all expenses in connection with (1) the preparation, but in any event not later than forty-five printing, filing, distribution and mailing (45including, without limitation, express delivery service) 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.
, each preliminary prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (hif any); (2) During 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 period of five registrar or transfer agent for the Common Stock; (5) years after the date hereofprinting, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Company will furnish to its stockholdersAgreement Among Underwriters, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earningsif any, and will deliver to the Representative:
Selected Dealers Agreement; (i6) concurrently with furnishing such quarterly reports to its stockholders, statements of income copies 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 CommissionRegistration Statement, 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
(vi) any additional information of a public nature concerning the Company (Prospectus and any future subsidiary) or its businesses which the Representative may request. During such 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(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 Prospectuspreliminary prospectus, and all amendments and supplements thereto, including any prospectus prepared after as may be requested for use in connection with the effective date offering and sale of the Registration StatementShares 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 Regulatory, in each case as soon as available Inc. (the "NASDR"); and in such quantities as (8) the Representative may requestquotation of the Shares on NASDR's Automated Quotation System ("NASDAQ").
(kh) On or before the effective date of the Registration StatementClosing Date, the Company shall provide sell to you the Representative with true original copies Underwriters' Warrant to purchase 150,000 Shares for an aggregate purchase price of duly executed, legally binding $10. The Underwriters' Warrant shall be divided between you and enforceable agreements your designees in such manner as you shall jointly direct by written instruction to the Company at least two business days prior to the Closing Date.
(i) If this Agreement shall be terminated pursuant to whichany of the provisions hereof (otherwise than by notice given by you pursuant to Section 8 hereof) 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; provided, however, the Company shall not be so obligated to reimburse you if this Agreement is terminated by reason of a failure to satisfy the condition set forth in Section 7(k) hereinbelow by reason of your unwillingness to modify the underwriting arrangements pertaining to sale of the Shares and/or the participation by you in the sale of the Shares, as may be requested by the NASDR.
(j) For a period of twelve ninety (1290) months from days after the effective date commencement of the Registration Statement, each public offering 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 Shares by you, without your prior written consent, the Company will not, directly or indirectlynot offer, issue, offer sell, contract to sell, sell, grant an 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 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 securities of Common 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, or for stock options granted to employees pursuant to the Company's Omnibus Stock or any options, rights or warrants with respect Plan attached as an exhibit to any shares of Common Stock. the Registration Statement.
(k) On or before prior to the Closing Date, the Company shall deliver instructions obtain 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 Transfer Agent authorizing it Effective Date (or any longer period required by NASDAQ or any jurisdiction in which the offer and sale of the Shares is to place appropriate legends on be registered or qualified), he or she will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the certificates representing sale of, or otherwise dispose of, directly or indirect ly, any securities of the securities subject to Company (including without limitation any shares of Common Stock), owned by him or her as of the Lock-Closing Date, whether upon exercise of warrants, stock options or otherwise, without Nichols, Safina, ▇▇▇▇▇▇ & Co., Inc.'s prior written consent (the "Lock- up Agreements and to place appropriate stop transfer orders on the Company's ledgersLetter").
(l) Neither The Company has reserved and shall continue to reserve and keep available the Company, the Subsidiary, nor any maximum number of their respective officers, directors, stockholders, nor any shares of their respective affiliates (within the meaning its authorized but unissued Common Stock and other securities for issuance upon exercise 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 CompanyUnderwriters' Warrant.
(m) The For a period of five years after the date of this Agreement, the Company shall:
(1) retain ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another nationally recognized firm of independent public accountants, as its auditors, and at its own expense, shall apply cause such indepen dent certified public accountants to review the net proceeds from the sale Company's financial statements for each of the Securities in first three fiscal quarters of each fiscal year prior to the mannerannouncement of quarterly financial information, the filing of the Company's Form 10-QSB quarterly reports and the mailing of quarterly financial information to its stockholders;
(2) cause the Company's Board of Directors to meet not less frequently than quarterly, upon proper notice, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion cause an agenda and minutes of the net proceeds will preceding meeting to be useddistributed to directors prior to each such meeting;
(3) distribute to its security holders, directly or indirectlywithin 120 days after the end of each fiscal year, to acquire any securities issued 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 CompanyCommission 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) The For a period of five years after the date of this Agreement, the Company shall timely file all 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 stockholders' 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 reportsfiscal year and for the twelve months then ended, forms accompanied by a copy of the certificate or other documents report thereon of such independent certified public accountants;
(2) (x) for so long as may be required (includingthe Company is a reporting company under any of Sections 12(b), but not limited to, a Form SR as may be required pursuant to Rule 463 under 12(g) or 15(d) of the Act) from time to time, under 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, and or (y) at such times as the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements Company is not a reporting company under the Act, 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 for each such fiscal quarter and the Rules comparable period of the preceding year, which statements need not be audited;
(3) as soon as practicable after they have first been distributed to stockholders of the Company, copies of each annual and Regulationsinterim financial or other report or communica tion sent by the Company to its stockholders (except to the extent duplicative of information furnished pursuant to any other clause of this Section 4(n));
(4) as soon as practicable following release or other dissemination, copies of every press release and every material news item and article in respect of the Company or its affairs released or otherwise disseminated by the Company;
(5) promptly following receipt thereof, copies of the Company's daily transfer sheets prepared by the Company's transfer agent and a list of stockholders; and
(6) such additional documents and information with respect to the Company and its affairs, if any, as you may from time to time reasonably request.
(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[Intentionally deleted].
(p) The On or prior to the Effective Date, the Company shall cause will have accomplished the Common Stock quotation of the Shares on the NASDAQ SmallCap Market, subject only to notice of issuance and the registra tion of such securities under the Exchange Act. For a period of five years from the date of this Agreement, the Company agrees, at its sole cost and expense, to take all necessary and appropriate action such that its securities continue to be quoted on Amex andNASDAQ, for a period provided that the Company otherwise complies with the prevailing requirements of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock to the extent outstandingNASDAQ.
(q) For a period of five (5) two 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 Securitiesthis Agreement, 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 effectiseek to amend its certificate
Appears in 1 contract
Sources: Underwriting Agreement (Galvestons Steakhouse 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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representativefollowing:
(i) concurrently with furnishing such quarterly reports at any time from the Effective Date to its stockholdersthe date that is fourteen (14) months from the Effective Date, statements each of income ATW Opportunities and ATW Master Fund may in their sole discretion exchange any warrant to purchase Common Stock of the Company held by them as of the date hereof (the “ATW Warrants”), for each quarter an equivalent warrant to purchase the same amount of shares of Common Stock, in the form furnished of any other warrant 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 purchase Common Stock of the Company as at the end may otherwise be outstanding as of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of date hereof or which 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
(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 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(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 issue after the effective date of Effective Date and having 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 terms of any shares of Common Stock or securities convertible intosuch other warrant, 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, exercise price thereof 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.final exercise date or termination date;
(oii) The Company shall furnish at any time from the Effective Date to the Representative as early as practicable prior to each of date that is fourteen (14) months from the date hereof, the Closing Date and each Option Closing Effective Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements ATW Opportunities may in its sole discretion exchange any obligation of the Company to pay amounts in respect of the Revolving Note, for an equivalent instrument of the Company in the principal amount of obligation, in the form of any other debt instrument which the Company currently has outstanding or may issue after the Effective Date and having the terms of any such instrument, including, but not limited to, the interest rate, original issue discount, maturity date, and conversion price;
(which in no event shall be as of a date more than thirty (30iii) days prior to following the date of hereof 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 all cash proceeds from the Common Stock sale of third-party Securities Collateral to be quoted on Amex andpaid into an account of the Company identified by ATW Opportunities and ATW Master Fund (the “Sweep Account”), except for a period of five (5) years proceeds from the sale of securities of listed on Exhibit A hereto;
(iv) on the final Business Day of each week following the date hereof, use its best efforts to maintain hereof if the Amex quotation cash balance of the Common Stock Sweep Account is equal to the extent outstanding.
(q) For a period or in excess of five (5) years from the Closing Date$10,000, the Company shall furnish cause such proceeds (a) first, to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating be paid to the Common Stock, (ii) the list of holders of ATW Opportunities until all amounts owing in respect of the Company's securities Credit Agreement 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 Revolving Note have been paid 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 hereoffull, and (iib) the sale second, to the public ATW Master Fund until all amounts owing in respect 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.Debenture have been paid in full;
(v) For a period following the date hereof the Company shall provide to each of five ATW Opportunities and ATW Master Fund, view access to each brokerage or similar account where any Securities Collateral is held and upon request of either ATW Opportunities or ATW Master Fund all trading records relating to the Securities Collateral; and
(5vi) years after following the effectidate hereof the Company shall promptly notify each of ATW Opportunities and ATW Master Fund in writing of any material changes in its financial condition, operational performance, or funding sources that may impact its ability to fulfill any of its obligations hereunder.
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 as promptly as practicable and will not at any timeconfirm such notice in writing, whether before or after of (i) 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 Exchange Act before termination of the offering of the 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 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, 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 effective; 1934 Act (ii) of other than any amendment, supplement or document relating solely to securities other than the issuance by the Commission of any stop order or of the initiationNotes), 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 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 or of any state securities commission shall enter a stop order suspending the effectiveness of the Registration Statement or suspend such qualification at the initiation of any timeproceedings 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 the public announcement by any nationally 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 fifth 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 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 or other documents proposed to be filed or used a reasonable amount time in advance of time prior to such proposed filing or use, as the case may be, and will not file any such prospectus amendment or supplement or other documents in a form to which the Representative Agents or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") counsel for the Agents shall reasonably object.
(ec) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will deliver to the time the Registration Statement becomes effective, to qualify the Securities for offering Agent as many signed 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 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 conformed 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectioriginally
Appears in 1 contract
Sources: Distribution Agreement (Developers Diversified Realty Corp)
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 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 Exchange Act before termination of the offering of the 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 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, 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 shall issue any state securities commission 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 fifth 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 Issuer Free Writing Prospectus to you and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission through the time when a prospectus which relating to the Company proposes for use Shares is required by the Underwriters Act to be delivered in connection with the offering sales of the Securities which differs from the corresponding prospectus on file at the 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 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 objectShares.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Shares 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 notify you and, upon your request, file such document and 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) As soon 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 practicableyou 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 (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 any no event not later than forty-five (45) days beyond one year after the end 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 12Act), which need not be audited, covering a twelve-month period beginning on the day commencing 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 and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hl) During If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a period 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 five (5) years after any inability, failure or refusal on the date hereofpart 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 will furnish agrees to its stockholders, as soon as practicable, annual reports reimburse you and the other Underwriters for all reasonable and documented out-of-pocket expenses (including financial statements audited travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by independent public accountantsyou) not to exceed an aggregate of $250,000 reasonably incurred by you and unaudited quarterly reports of earnings, 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 Underwriters 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedconnection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies day that is 30 days after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Class A Common Stock (either other than the Class A Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall notwarrants, without the prior written consent of the Representative, sell, contract rights or offer to sell, issue, transfer, assign, pledge, distributeother awards), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 Representatives 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 Representatives, 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 deliver instructions not apply to (A) the Shares to be sold hereunder, (B) 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 (C) 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 Transfer Agent authorizing it issuance of any shares of Class A Common Stock pursuant to place appropriate legends on the certificates representing the securities subject to this clause (C) during the Lock-Up Period, the recipient(s) of such shares of Class A Common Stock shall sign and deliver a lock-up Agreements and to place appropriate stop transfer orders on agreement substantially in the Company's ledgersform of Exhibit A hereto.
(lo) Neither Prior to the CompanyClosing Date or the Additional Closing Date, as the case may be, at the reasonable request of the Underwriters, the SubsidiaryCompany will furnish to you, nor as promptly as possible, copies of any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning unaudited interim consolidated financial statements of the Rules Company and Regulationsits subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will takecomply 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 todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 Class A Common Stock to be quoted on Amex and, for a period facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, The Company will timely file a Form 8-A with the Commission providing for Nasdaq Global Select Market (the registration under “Nasdaq”) all documents and notices required by the Exchange Act Nasdaq of companies that have or will issue securities that are traded on 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) yearsNasdaq.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction 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 incorporation or the offering contemplated herebyrules of any national securities exchange on which the Class A Common Stock is listed, 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.
a registrar (u) For a period equal to the lesser of (i) five (5) years from the date hereofwhich, 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 effectiif permitted by a
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 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 Exchange Act before termination of the offering of the 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 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, 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 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 any state securities commission authority 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 fifth 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 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 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 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 forty-five (45) 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) 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 five seven (57) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(vi) 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 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(ies) 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 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 StockStock 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 the officers and directors of the Company's stockholders , holders of [____] shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees Stock, agree that it or he or she will not, not directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate 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 Representatives Representative and the Company. 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 nine (collectively9) months from the effective date of the Registration Statement, holders of [_____] shares of Common Stock agree that it or he or she will not, directly or indirectly, issue, offer, sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of such shares of Common Stock or any 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 (together with the agreements described above, the "Lock-up Agreements"). During the 12 six (6) month period commencing on 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, the Subsidiary, nor any of their respective 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 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 letters its letter to be furnished pursuant to Sections Section 6(j) hereof.
(p) The Company shall cause the Common Stock and the Redeemable Warrants to be quoted on Amex and, and for a period of five seven (57) 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 Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, 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.
(r) As soon as practicable, (i) but in no event more than five (5) business 30 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 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 five seven (57) years.
(s) [The Company hereby agrees that it will not, not for a period of twelve thirteen (1213) 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 sale of any option, warrant shares of Common Stock or other contract right securities of the Company (xi) in an amount greater than an aggregate of 500,000 shares, (ii) at an exercise or sale price that is 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 or sale, (yiii) to any direct or indirect beneficial holder on the date hereof of its executive officers or directors or to any holder of 5more than 10% or more of the issued and outstanding shares of 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 effectiSt
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 of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective as effective, (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 pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver a Prospectus pursuant to Rule 434 of the Rules and Regulations, 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 Exchange Act before termination of the offering of the 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 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 prepare and file with the Representative and confirm Commission, promptly upon the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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) 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 any state securities commission shall enter a stop order or suspend such qualification at any time, opinion of the Company Representatives may be reasonably necessary to enable the several Underwriters to continue the distribution of the Common 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 fifth 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 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 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 relating to the Common 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 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 or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus 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 if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend or supplement the Prospectus to comply with the ActSecurities Act or the Securities Exchange Act of 1934, the Company will promptly notify the Representative promptly Representatives thereof and prepare and will prepare, file with the Commission an appropriate amendment or supplement in accordance with Section 10 of and furnish, at its own expense, to the Act, each such amendment or supplement Underwriters and to be satisfactory to Underwriters' Counsel, the dealers (whose names and addresses the Company Representatives will furnish to the Underwriters copies Company) to which Common Stock shall have been sold by the Representatives on behalf of such amendment or supplement as soon as available and in such quantities as the Underwriters may and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with the Securities Act or the Securities Exchange Act of 1934.
(gd) As soon as practicableThe Company will deliver to the Representatives, but in any event not later than forty-five (45) days after at or before the end Closing Dates, signed copies of the 12Registration Statement, as originally filed with the Commission, and of 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-month period beginning effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the day after the end date of the fiscal quarter initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Common Stock is required under the Securities Act, as many copies of the Company during which 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 occurs shall be borne by the Underwriters required to deliver such prospectus.
(ninety (90e) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the The Company shall will make generally available to its security holdersshareholders as soon as practicable, in but not later than fifteen (15) months after the manner specified in Rule 158(b) effective date of the Rules and Regulations, and to the RepresentativeRegistration Statement, an earnings earning statement which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 Securities Act, covering a period of at least twelve (12) consecutive months beginning after the "effective date 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 Common 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 Common 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 Common 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 Common Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Common 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 cooperation of the Representatives, use its best efforts to obtain the withdrawal thereof.
(g) The Company will use its best efforts to list the Common Stock, subject to official notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the Registration Statement.
(h) During a period of five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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) and registrar for its Common Stock.
(i) 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.
(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 whichnot, for a period of twelve (12) months from 180 days following 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, final prospectus filed by the Company shall not, with the Securities and Exchange Commission in connection with such public offering without the prior written consent of SG C▇▇▇▇, ▇▇ behalf of the Representativeseveral Underwriters, (1) directly or indirectly, offer, sell, assign, transfer, encumber, pledge, contract or offer to sell, issuesell any option or contract to purchase, transferpurchase any option or contract to sell, assigngrant any option, pledgeright or warrant to purchase, distributelend, or otherwise dispose of, directly other than by operation of law, or indirectlyfile with the Securities and Exchange Commission a registration statement under the Act relating to, any shares of Common Stock or any optionssecurities convertible into or exercisable or exchangeable for Common Stock (including, rights or warrants with respect without limitation, Common Stock which may be deemed to any shares of Common Stock. On or before the Closing Date, be beneficially owned by 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 in accordance with the Rules and Regulations) will takeor (2) enter into any swap or other arrangement that transfers to another, directly in whole or indirectlyin part, any action designed toof the economic consequences of ownership of Common Stock whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, other than (a) the Company's sale of Common Stock hereunder, (b) the Company's issuance of stock options under the Company's 1995 Stock Plan or 2000 Stock Option Plan, (c) 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 which might are granted after the date hereof and which are exercisable before the expiration of the 180-day period referred to above consistent with the Company's past practices in the future reasonably be expected two years preceding the date of this Agreement, (d) the Company's issuance of Common Stock pursuant to cause the Company's 2000 Employee Stock Purchase Plan, (e) the filing of a registration statement on Form S-8 relating to stock option plans or result in, stabilization or manipulation other employee benefit arrangements of the price Company in existence on the date hereof, provided, however, that such no registration statement will be filed for a period of any securities of 30 days following the First Closing Date, and (f) the Company's issuance of Common Stock in connection with acquisitions by the Company or any of its subsidiaries of products, technologies or businesses, provided that the aggregate number of shares issued pursuant to this subsection (f) does not exceed, in the aggregate, 2,800,000 shares.
(mk) The Company shall will apply the net proceeds from the sale of the Securities Common Stock as set forth in the manner, and subject to the conditions, set forth description under "Use of Proceeds" in the Prospectus. No portion , which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(l) The Company will supply the Representatives with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the net proceeds Common Stock under the Securities Act.
(m) Prior to each of the Closing Dates the Company will be usedfurnish to the Representatives, directly or indirectlyas 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 acquire any securities issued the periods covered by the Companyfinancial statements appearing in the Registration Statement and the Prospectus.
(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 Prior to each of the date hereof, Closing Dates the Closing Date Company will issue no press release or other communications directly or indirectly and each Option Closing Date, if any, but hold no later than two press conference (2) full except for routine oral marketing communications in the ordinary course of business days prior thereto, a copy of and consistent with the latest available unaudited interim financial statements past practices of the Company (and of which in no event shall be as of a date more than thirty (30the Underwriters are notified) days prior with respect to the date Company or any 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 Datesubsidiaries, the Company shall furnish to financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to offering of the Common Stock, (ii) without the list of holders of all Representatives' prior written consent, unless in the judgment of the Company's securities Company and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel its counsel, and after notification to the Company.
(r) As soon as practicableUnderwriters, (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 press release or communication is required by law. For a period of twelve (12) months from following 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 SecuritiesFirst Closing Date, the Company shall not, without will use its best efforts to provide to the prior written consent Representatives copies of the Representative and Underwriters' Counsel, issue, directly or indirectly, any each press release or other communication or hold any press conference public communications with respect to the Company financial condition, results of operations, business, prospects, assets or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course liabilities of the Company's business consistent with past practices with respect to the Company's operations.
Company at least twenty-four (u24) For a period equal to the lesser of (i) five (5) years from the date hereof, and (ii) the sale hours prior to the public of the Representative's Securities, the Company will not take any action issuance thereof or actions which such longer advance period as 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 Securitiesreasonably be practicable.
(v) For a period of five (5) years after the effecti
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 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 Exchange Act before termination of the offering of the 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 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 writing, (i) when the Registration Statement, as amended, becomes effective, 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 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 any state securities commission authority 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 fifth 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 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 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 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) 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) 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, stockholders annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 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, affairs which was released or prepared by or on behalf of the Company; and
(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 seven-year five (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(ies) 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 ("Transfer Agent") 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 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 original copies of duly executed, legally binding and enforceable agreements pursuant to which, which for a period of twelve not less than six (126) months from the effective date of the Registration Statement, each Statement all officers and directors of the Company's stockholders and holders Company holding shares of the Common Stock or securities exercisable or exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she issued and outstanding will not, directly or indirectly, issue, not 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 such 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 Representatives Josephthal (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. 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, the Subsidiary, nor any of their respective 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 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 letters letter to be furnished pursuant to Sections Section 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on Amex and, Nasdaq or a National Securities exchange and for a period of five seven (57) years from the date hereof, and use its best efforts to maintain the Amex 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, (i) but in no event more than five (5) business 30 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 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 five seven (57) years.
(s) The Company hereby agrees that it will not, not for a period of twelve thirteen (1213) 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 sale of any option, warrant shares of Common Stock or other contract right securities of the Company (xi) in an amount greater than an aggregate of __________ shares of Common Stock, (ii) at an exercise or sale price that is per share less than the greater of the public offering price of the Shares set forth herein and the fair market value of the Common Stock on the date of grant or sale or sale, (yiii) to any direct or indirect beneficial holder on the date hereof of its executive officers or directors or to any holder of 5more than 10% or more of the issued and outstanding shares of Common Stock; , (iiiv) with the payment for such securities with any form of consideration other than cash; , (v) upon payment of less than the full purchase or (iii) exercise price for such shares of Common Stock or other securities of the existence of stock appreciation rights, phantom options or similar arrangementsCompany.
(t) Until the completion of the distribution of the SecuritiesShares, and for 25 days thereafter, the Company shall not, 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 seven (57) years from the date hereof, and (ii) the sale to the public of the Representative's SecuritiesShares, 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 SecuritiesShares.
(v) For a period of five (5) years after the effecti
Appears in 1 contract
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 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 Exchange Act before termination of the offering of the 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 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, 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; (iior Section 2(b) of the issuance this Agreement and, after approval of each such Pricing Supplement by the Commission of any stop order or of Agents participating in the initiationapplicable offering, 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 any state securities commission 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;
(or, if applicable c) With respect to any Notes to be offered and if consented sold to or through the Agents pursuant to Section 2(a) or Section 2(b) of this Agreement the Company will prepare a final term sheet relating to such Notes in a form approved by the Representative, 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 fifth 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 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 a reasonable amount of time prior to such proposed filing or use, as form of prospectus that shall be disapproved by the case may be, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.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 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 with the Commission or effectiveness of an amendment to the Registration Statement, as the Underwriters case may requestbe, 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) As soon as practicableThe Company will promptly advise the Agents (1) when the Prospectus, but in and any event not later than forty-five supplement thereto, shall have been filed (45if required) days after with the end Commission pursuant to Rule 424(b), (2) when, prior to termination of any 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 12-month period beginning on Registration Statement, or for any amendment or supplement to the day after the end Prospectus or for any additional information, (4) of the fiscal quarter issuance by the Commission of any stop order suspending the Company during which the effective date effectiveness of the Registration Statement occurs or of any notice that would prevent its use or the institution or threatening of any proceeding for that purpose and (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(b5) of the Rules and Regulations, and receipt by the Company of any notification with respect to the Representativesuspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose;
(h) If, an earnings statement which will be during the period referred to in the detail required by, and will otherwise comply with(g) above, 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 Commission shall threaten or initiate any stop order proceeding in respect of the Registration Statement.
(h) During a period of five (5) years after the date hereof, the Company will furnish use its reasonable efforts to its stockholders, prevent the issuance of any such stop order or to obtain the withdrawal of such order as soon as practicablepossible, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of unless the Company for each quarter shall, in its sole judgment, determine that it is in the form furnished Company’s best interest not to the Company's stockholders and certified by the Company's principal financial or accounting officerdo so;
(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
(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 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(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"file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) 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.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 Representative 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 Representative's orderCompany with the Commission or any national securities exchange;
(l) The Company agrees to arrange, without chargeif necessary, at to qualify the Notes for sale under the securities laws of such place jurisdictions as the Representative may Agents reasonably designate, copies 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 Preliminary Prospectus, such time (and it is understood that such representations and warranties shall relate to 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 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 8-K (or any successor form thereto)), including if requested by any prospectus prepared after Agent, the effective date 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 StatementStatement or the Prospectus as amended and supplemented to such time) or, in each case as soon as available and in lieu of such quantities certificate, a certificate of the same tenor as the Representative may request.certificate referred to in said Section 6(i), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate;
(ko) On or before the effective date of Each time that the Registration StatementStatement 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 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)), if requested by any Agent, the Company shall provide furnish the Representative Agents and their counsel with true original copies written opinions 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 counsel of the Company's stockholders , addressed to the Agents and holders 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 exchangeable other than the Notes or exercisable for (iv) a Current Report on Form 8-K (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"successor form thereto). During the 12 month period commencing on the effective date of the Registration Statement), the Company shall notcause its independent public accountants who reviewed or audited such information, without as the prior written consent case may be, to furnish the Agents, concurrently with such amendment, supplement or 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 Representativesame 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; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, the 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, contract or offer enter into any agreement 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 file with respect the Commission a registration statement under the Act relating to any shares of Common Stock. On its 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 before publicly disclose the Closing Dateintention to make any such offer, sale, pledge or disposition or filing;
(r) If so stated in any Terms Agreement, 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 cause an application for the Amex quotation listing of the Common Notes on The New York Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing DateExchange, 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 Inc. or listing or quotation on such other securities exchange or automatic quotation system specified in such Terms Agreement 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 effectiNotes
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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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.consideration
(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 F-1 (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 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 will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 shall issue any state securities commission 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) 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 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 fifth 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 the Company proposes Underwriter and counsel for use by Underwriter and obtain the Underwriters in connection Underwriter’s consent prior to filing any of those with the offering of the Securities which differs from the corresponding prospectus on file at the 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating to the time Common Stock that would constitute an Issuer Free Writing Prospectus without 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 qualificationUnderwriter’s prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 (if required to be stated filed pursuant to the Act) and to prepare and furnish without charge to the 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 the Underwriter, without charge, in such quantities as it 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.
(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 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 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 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 practicableUnderwriter, 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 stockholderswithout charge, a balance sheet reasonable number 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedthereof.
(i) The During the Prospectus Delivery Period, the Company will maintain a transfer agent ("Transfer Agent") andfile all documents required to be filed with the Commission pursuant to Sections 13, if necessary under the jurisdiction of incorporation 14 and 15 of the Company, a Registrar (which may be Exchange Act in the same entity as manner and within the Transfer Agent) for its Common Stocktime periods required by the Exchange Act.
(j) The Company will furnish to cooperate with the Representative Underwriter and counsel for the Underwriter in connection with the registration or on qualification of the Representative's order, without charge, at Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such place jurisdictions as the Representative 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 reasonably designate and will include all financial statements file such consents to service of process or other documents as may be reasonably necessary in order to effect and exhibits)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 the Underwriter 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 all amendments secondary trading and supplements theretowill comply with such Blue Sky laws and will continue such qualifications, including any prospectus prepared registrations and exemptions in effect for a period of 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, in each case and ending not later than 15 months thereafter, as soon as available 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 the Underwriter, the Company will furnish to the Underwriter, (i) as soon as 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, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or 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 Representative Underwriter may reasonably request.
(km) On If this Agreement shall terminate or before 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 effective 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 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.
(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 60th day after the date of the Registration StatementProspectus (the “Lock-Up Period”), 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, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 Closing 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, and to cause each officer and director of the Company set forth on Schedule II hereto to furnish to the Underwriter, 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 shall deliver instructions issues an earnings release or announces material news or a material event relating to the Transfer Agent authorizing it Company occurs or (2) prior to place appropriate legends on the certificates representing the securities subject to expiration of the Lock-up Agreements and to place appropriate stop transfer orders Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the Company's ledgerslast 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.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date The Company will timely file with Nasdaq all documents and notices required by Nasdaq 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) yearscompanies that have or will issue securities that are traded on Nasdaq.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 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 amendment thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus Statement has been filed in accordance with said Rule 430A become effective 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) if information is omitted from the Registration Statement pursuant to Rule 430A under the Act, when the Prospectus or term sheet (as described in Rule 434(b) under the Act) has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement, 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 the initiation (or threatened initiation) of the initiation, or the threatening, of any an 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 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, three 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 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 any state securities commission shall enter a stop order supplements to the Registration Statement or suspend such qualification at any timeProspectus which, in the Company will make every effort to obtain promptly opinion of counsel of the lifting several Underwriters may be necessary or advisable in connection with the distribution of such orderthe Shares 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 (iidelivery of this Agreement) and thereafter from time to time for such period as in the fifth 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 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 Act and 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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) hereof, 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.
(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 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 or supplement as soon as available and jurisdiction. In the event that the qualification of the Shares in such quantities as any jurisdiction is suspended, the Underwriters may requestCompany shall so advise you promptly in writing.
(g) As soon as practicableThe 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), but in any event which need not later than forty-five (45) days after the end of the be audited, covering a 12-month period beginning on the day commencing 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 and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 158 under the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statementand will advise you in writing when such statement has been so made available.
(h) During a the period of ending five (5) years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each report or other) mailed to stockholders;
(iv) as soon as they are available, copies definitive proxy statement of all reports and financial statements furnished to or the Company filed with the CommissionCommission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the NASD National Association of Securities Dealers, Inc. (the "NASD"), the Nasdaq Stock Market or any national securities exchange;
exchange or mailed to shareholders, and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature 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 future subsidiaryamendments to previously filed documents, required to be filed by it pursuant to Sections 13, 14 or 15(d) or its businesses which the Representative may request. During such 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 Exchange Act. The Company and its subsidiary(ies) are consolidated, and will be accompanied file Form SR as required by similar financial statements for any significant subsidiary which is not so consolidatedthe Act.
(i) The Company will maintain a transfer agent If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof ("Transfer Agent") andexcept Section 11), or if necessary under this Agreement shall be terminated by the jurisdiction Underwriters because of incorporation any inability, failure or refusal on the part of the Company or any Selling Shareholder to perform any agreement herein or to comply with any of the terms or provisions hereof or to fulfill 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) incurred by you in connection herewith, provided, however, that if this Agreement shall be terminated by the Company for any reason, the Company, 's obligation to reimburse the Underwriters shall be limited to a Registrar (which may be the same entity as the Transfer Agent) for its Common Stockmaximum amount of $50,000.
(j) The Company will furnish apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the Representative or on statements set forth under the Representative's order, without charge, at such place as the Representative may designate, copies caption "Use 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), Proceeds" in 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 If information is omitted from the Registration Statement pursuant to Rule 430A under the Act, the Company will timely file the Prospectus or before a term sheet (as described in Rule 434(b) under the effective Act) pursuant to Rule 424(b) under the Act.
(l) For a period of 180 days after the date of the Registration StatementProspectus 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 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 sell, contract to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate offer or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either collectively, "Company Securities") or any rights to purchase Company Securities, except (i) to the Underwriters pursuant to Rule 144 this Agreement, (ii) pursuant to and in accordance with the Company's stock option plans described in the Prospectus, or (iii) pursuant to the exercise or conversion of warrants, stock options, preferred stock or convertible debentures issued and outstanding at the Rules and Regulations or otherwise) or dispose time 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 effectiveness of the Registration Statement and described in the Registration Statement.
(m) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall notwill furnish to you, without the prior written consent as promptly as possible, copies of any unaudited interim consolidated financial statements of the Representative, sell, contract or offer Company and its Subsidiaries (as defined below) for any period subsequent to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose ofthe 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, directly or indirectly, take any shares of Common Stock action that would constitute 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 todesigned, or which might in the future reasonably be expected to cause or result inin or constitute, under the Act or otherwise, stabilization or nor 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 security of the Company (which in no event shall be as of a date more than thirty (30) days prior to facilitate the date sale or resale 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) hereofShares.
(p) The Company shall cause the 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 be quoted on Amex andpermit 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 (5) years from after 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 so long as the Closing DateCompany's Common Stock is listed therewith, the Company shall furnish to will comply with 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 filing and other requirements 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 CompanyNasdaq National Market.
(r) As soon as practicable, (i) but in no event more than five (5) business days before If at any time during the effective 90-day period after the first date that any of the Registration StatementShares are released by you for sale to the public, file any rumor, publication, or event relating to or affecting the Company shall occur as a Form 8-A with result of which in your opinion the Commission providing for the registration under the Exchange Act market price of the Securities and Common Stock (iiincluding the Shares) but in no has been or is likely to be materially affected (regardless of whether such rumor, publication, or event more than thirty (30) days after the effective date necessitates a supplement to or amendment of the Registration StatementProspectus), take all necessary and appropriate actions the Company will, after written notice from you of advising the Company to be included in Standard and Poor's Corporation Descriptions and the effect set forth above, promptly consult with Raym▇▇▇ ▇▇▇e▇ & ▇▇'▇ OTC Manual ssociates, Inc. concerning the advisability and substance of, and, if appropriate, disseminate a press release or other public statement reasonably satisfactory to continue you responding to or commenting on such inclusion for a period of not less than five (5) yearsrumor, publication, or event.
(s) The Company hereby agrees that it will not, for a period of twelve (12) months shall not invest or otherwise use the proceeds received by the Company from the effective date its sale of the Registration StatementShares, adopt, propose to adopt or otherwise permit to exist conduct its business, in such a manner as would require the Company or any employee, officer, director, consultant or compensation plan or similar arrangement permitting Subsidiary (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 (yas defined below) to any register as an investment company under the Investment Company Act 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 rights1940, phantom options or similar arrangementsas amended.
(t) Until The Company will maintain a transfer agent and, if necessary under the completion jurisdiction of its incorporation or the rules of the distribution of Nasdaq National Market or any national securities exchange on which the SecuritiesCommon Stock is then listed, a registrar (which, if permitted by applicable laws and rules, may be the Company shall not, without same entity as 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 transfer agent) for 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 operationsCommon Stock.
(u) For a period equal 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 lesser personal jurisdiction 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 Securitiessuch courts.
(v) For a period of five (5) years after the effecti
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Initial Purchaser as follows:
(a) The Company shall use its best efforts to cause During the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after period ending upon the effective date completion of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination distribution of the offering Securities to advise the Initial Purchaser promptly and, if requested, confirm such advice in writing, of the Shares by the Underwriters happening of any event of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected 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 aware which makes any statement of a material fact made in the Offering Circular untrue or obtains knowledge thereofthat requires the making of any additions to or changes in the Offering Circular (as amended or supplemented from time to time) in order to make the statements therein, in light of the Company will circumstances under which they were made, not misleading; to advise the Representative and confirm the notice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions Initial Purchaser promptly upon learning 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 Offering Circular or the ProspectusOffering Circular, 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 and of learning of the initiation, initiation or the threatening, threatening of any proceeding for that any such purpose; (iv) and to use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the receipt Preliminary Offering Circular or of the Offering Circular or suspending any such qualification and, if any such suspension is issued, to use its reasonable best efforts to obtain the lifting thereof at the earliest possible time.
(b) To furnish promptly to the Initial Purchaser and counsel for the Initial Purchaser, without charge, as many copies of the Preliminary Offering Circular and the Offering Circular (and of any comments from amendments or supplements thereto) as may be reasonably requested; to furnish to the CommissionInitial Purchaser on the date hereof a copy of the independent accountants' report included in the Offering Circular signed by the accountants rendering such report; and (v) of any request by the Commission for any amendment Company hereby consents to the Registration Statement or use of the Preliminary Offering Circular and the Offering Circular, and any amendment or supplement to amendments and supplements thereto, in connection with Exempt Resales of the Prospectus or for additional information. If the Commission or any state securities commission 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 orderNotes.
(c) The Company shall file If 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 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 Offering Circular is required at 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 time in connection with the offering sale of the Securities which differs from the corresponding prospectus on file Notes and if at the Commission at the such time the Registration Statement Company 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 aware of any such amendment or supplement 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 events 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 is required to be delivered under the Act, any event shall have occurred as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, Offering Circular as then amended or supplemented, includes supplemented 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 the Offering Circular is delivered, not misleading, or if for any other reason it is shall be necessary at any such time to amend or supplement the Prospectus Offering Circular in order to comply with the Actany law, the Company will to notify the Representative Initial Purchaser immediately after learning thereof, and to promptly and prepare and file with furnish to the Commission Initial Purchaser an appropriate amendment amended Offering Circular or a supplement to the Offering Circular so that statements in accordance with Section 10 the Offering Circular, as so amended or supplemented, will not, in light of the Actcircumstances under which they were made when it is so delivered, each be misleading, or so that the Offering Circular will comply with applicable law. The Initial Purchaser's delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions set forth in Section 6 hereof.
(d) During the five-year period following the Closing Date, provided any of the Notes remain outstanding, to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies Initial Purchaser all reports, documents, information and financial statements filed by the Company with the Commission pursuant to the Trust Indenture Act, the Exchange Act or the Rules and Regulations.
(e) During the two-year period following the Closing Date or the last Option Closing Date, if any, for so long as and at any time that it is not subject to Section 13 or 15(d) of the Exchange Act, upon request of any holder of the Notes, to furnish to such amendment holder, and to any prospective purchaser or supplement as soon as available purchasers of the Notes designated by such holder, information satisfying the requirements of subsection (d)(4) of Rule 144(A) under the Securities Act. This covenant is intended to be for the benefit of the holders from time to time of the Notes, and prospective purchasers of the Notes designated by such holders.
(f) To use the proceeds from the sale of the Notes in such quantities as the Underwriters may requestmanner described in the Offering Circular under the caption "Use of Proceeds."
(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.[intentionally omitted]
(h) During a period of five (5) years To use reasonable efforts to do and perform all things required to be done and performed under this Agreement by it that are within its control prior to or after the date hereof, the Company will furnish Closing Date and to use reasonable efforts to satisfy all conditions precedent on its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver part to the Representative:delivery of the Securities.
(i) concurrently with furnishing Except following the effectiveness of the Shelf Registration Statement, to not authorize or knowingly permit any person acting on its behalf to solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as such quarterly reports terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; provided, however, that nothing in this Section 4(i) shall impute any liability on the Company for any actions of the Initial Purchaser.
(j) To not, and to its stockholders, statements of income use reasonable efforts to ensure that no affiliate (as such term is defined in Rule 501(b) under the Securities Act) of the Company for each quarter will, offer, sell or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the form furnished Securities Act) which could be integrated with the sale of the Notes in a manner that would require the registration of the Notes under the Securities Act.
(k) To not, so long as the Notes are outstanding, be or become (and use its best efforts not to be or become owned by) an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and to not be or become (and use its best efforts not to be or become owned by) a closed-end investment company required to be registered, but not registered thereunder.
(l) To cooperate with the Initial Purchaser and counsel for the Initial Purchaser to qualify the Notes for offering and sale under the securities laws of such jurisdictions as the Initial Purchaser may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process or to subject it to taxation in any jurisdiction where it is not so qualified or so subject.
(m) To comply with the Registration Rights Agreement and all agreements set forth in the representation letters of the Company to The Depository Trust Company relating to the approval of the Notes for "book-entry" transfers.
(n) In connection with the Offering, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Notes, to not and use reasonable efforts to not permit any affiliated purchasers (as defined in Rule 10b-6 under the Exchange Act), either alone or with one or more other persons, to bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Notes or Common Stock, or attempt to induce any person to purchase any Notes; and to not and use reasonable efforts to not permit any of its affiliated purchasers to make bids or purchases for the purpose of creating actual, or apparent, active trading in or of raising the price of the Notes.
(o) Prior to the Closing Date, to not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company's stockholders and certified by the Company's principal , its condition, financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholdersotherwise, a balance sheet of the Company as at the end of the preceding fiscal yearor earnings, together with statements of operationsbusiness affairs or business prospects, 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 without prior consultation with the CommissionInitial Purchaser, unless in 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
(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 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 judgment of the Company and its subsidiary(ies) are consolidatedcounsel, and will be accompanied after notification to the Initial Purchaser, such press release or communication is required by similar financial statements for any significant subsidiary which is not so consolidatedlaw.
(ip) The Company will To not take any action after the date hereof and prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture.
(q) To not take any action prior to the Closing Date which in the Company's reasonable judgment would require the Offering Circular to be amended or supplemented pursuant to Section 4(c) hereof.
(r) Until April 1, 2005, to maintain a transfer agent ("Transfer Agent") and, if necessary under the laws of the jurisdiction of incorporation of the Company, a Registrar registrar (which may be the same entity as the Transfer Agenttransfer agent) for its the Common Stock.
(js) The Company will furnish to the Representative or For a period ending 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 earlier of five (5) years from the date hereofhereof or the date on which the aggregate principal amount of Notes outstanding is less than $1,000,000, to use its best efforts to maintain the Amex quotation Portal (or after the Shelf Registration Statement, Nasdaq Stock Market (or another national securities exchange listing, if the Company is then listed thereon) listing of the Common Stock Notes, to the extent outstanding.
, and the Nasdaq National Market (q) For a period of five (5) years from the Closing Dateor another national securities exchange or other Nasdaq Stock Market, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to if the Common Stock, (iiStock is then listed thereon) 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 listing 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) three years from the date hereofof issuance of the Notes, to not issue any security that is directly or indirectly convertible into or exchangeable for equity securities of the Company (or any security itself convertible into or exchangeable for equity securities of the Company) which provides for a conversion or exchange price which is calculated based upon the future market value of the Common Stock unless at the time of the issuance of the security an initial conversion or exchange price is established and (ii) the sale formula for calculating an adjusted conversion or exchange price expressly provides that such conversion or exchange price shall not be less than the initial conversion or exchange price other than as a result of anti-dilution adjustments to the public conversion or the exchange price resulting from issuance of the Representative's Securities, the Company will not take any action or actions which may prevent or disqualify equity securities by 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 1 contract
Sources: Purchase Agreement (Hybridon 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 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 Exchange Act before termination of during any time that a prospectus relating to the offering of Securities is required to be delivered under the Shares by the Underwriters Securities Act 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 reasonably objected, or which is not in compliance with the Securities Act, the Exchange Act, the Trust Indenture 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 if requested confirm the notice in writing writing, (i) when the Registration Statement, as amended, becomes effectiveeffective 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, or the threatening, of any proceeding suspending the effectiveness of the Registration Statement or the qualification of the Trustee 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, 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 any state securities commission 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 orderorder or suspension at the earliest possible time.
(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 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) Securities Act and the second business day following the execution Rules and delivery of this Agreement and (ii) the fifth 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-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 Notes which differs from the corresponding prospectus on file at the 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 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 Underwriters or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") Counsel shall reasonably object.
(e) The Company will furnish to the Underwriters and Underwriters' Counsel, without charge, one photocopy of the manually executed Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act, as many copies of each Preliminary Prospectus and Prospectus and any supplement thereto as the Underwriters may reasonably request.
(f) The Company shall endeavor in good faith, in cooperation with the Representative, Underwriters at or prior to the time the Registration Statement becomes effective, to qualify the Securities Notes 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 distributiondistribution contemplated hereby but in any event not longer than 90 days from the date hereof, 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 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 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 qualificationqualification for so long as may be necessary to complete the distribution contemplated hereby but in any event not longer than 90 days from the date hereof.
(fg) During the time when a 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 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 Notes 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 Notes 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' 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, therein not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities 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 Securities Act, each such amendment or supplement to be reasonably 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.
(gh) As soon as practicable, but in any event not later than forty-five (45) 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) 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 holderssecurityholders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, 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 Securities Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Securities Act, covering a period of at least twelve (12) 12 consecutive months after the effective date of the Registration Statement.
(hi) During For so long as the Company is a period reporting company under either Section 13 or 15(d) of five (5) years after the date hereofExchange Act, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the RepresentativeUnderwriters during the period ending at the earlier of the fifth anniversary of the date hereof or the date no Notes remain outstanding:
(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 stockholderssecurityholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, equity and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate report thereon of independent certified public accountants;
(ii) copies of the Quarterly Report on Form 10-Q and Annual Report on Form 10-K;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholdersstockholders generally;
(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 NASD, the Nasdaq Stock Market ("Nasdaq"), the New York Stock Exchange or any other securities exchange;
(v) every press release and every containing a 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 CompanyCompany or any of the Subsidiaries; and
(vi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiarysubsidiaries) or its their respective businesses which the Representative Underwriters may reasonably request. During such seven-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 subsidiary(ies) Subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary 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 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 four years after 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 such disclosure as may be required pursuant to Rule 463 under the Securities Act) from time to time, time under the Securities Act, the Exchange Act, 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 Securities Act, the Exchange Act, Act and the Rules and Regulations.
(ok) The Company shall furnish to the Representative 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 consolidated statements of operations and balance sheets of the Company and the Subsidiaries (which in no event shall be as of a date more than thirty (30) 30 days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, accountants as stated in their letters to be furnished pursuant to Sections Section 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.
(tl) Until the earlier of the completion of the distribution of the SecuritiesNotes or 90 days from the date hereof, neither the Company shall notnor any of the Subsidiaries shall, without the prior written consent of the Representative Underwriters and Underwriters' CounselCounsel (which consent shall not be unreasonably withheld), issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its 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.
(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.
(vm) For a period of five (5) four years after the effectieffective date of the Registration Statement, the Company shall use reasonable efforts to provide to the Underwriters, at the Underwriters' request and at the Company's sole expense, with a report on Blue Sky qualifications relating to secondary sales of the Company's securities prepared by counsel to the Company; provided, however that the Underwriters shall not make any such request unless the Notes are not listed on the Nasdaq Stock Market or a national securities exchange at the time of such request.
(n) The Company shall use the proceeds from the sale of the Notes in the manner described in the Prospectus under the caption "Use of Proceeds."
(o) The Company shall use its reasonable efforts to do and perform all things required to be done and performed under this Agreement by it that are within its control prior to or after the Closing Date and to use reasonable efforts to satisfy all conditions precedent on its part to the delivery of the Notes.
(p) The Company shall not, so long as the Notes are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and the Company will not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder.
(q) In connection with the offering, until the Underwriters shall have notified the Company of the completion of the resale of the Notes, to not, and to use its reasonable best efforts to not permit any affiliated purchasers (as defined in Regulation M under the Exchange Act), either alone or with one or more other persons to, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Notes or Knight/Trimark Common Stock, or attempt to induce any person to purchase any Notes or Knight/Trimark Common Stock; and to not, and to use its reasonable best efforts to not permit any of its affiliated purchasers to, make bids or purchases for the purpose of creating actual, or apparent, active trading in or of raising the price of the Notes.
(r) The Company shall not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture.
(s) The Company will comply with the provisions of NASD Rule 2720 for so long as the Notes are outstanding.
Appears in 1 contract
Sources: Underwriting Agreement (Southwest Securities Group 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.
(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 amend ments 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 as promptly as practicable under the 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, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 amendment 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, supplement unless the Company shall not be required have first delivered copies of such amendment or supplement to qualify as a foreign corporation or file a general or limited you and your counsel and you and your counsel shall have given your 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 filing of such jurisdiction to continue amendment or supplement. Any such qualificationamendment or supplement shall comply with the Act.
(f) During From and after the Effective Date, the Company will deliver to you, without charge, as many copies of the Prospectus or any amendment or supplement thereto as you may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time when a prospectus thereafter as the 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 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 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) As soon as practicableThe Company will promptly pay all expenses in connection with (1) the preparation, but in any event not later than forty-five printing, filing, distribution and mailing (45including, without limitation, express delivery service) 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.
, each preliminary prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (hif any); (2) During 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 period of five registrar or transfer agent for the Common Stock; (5) years after the date hereofprinting, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Company will furnish to its stockholdersAgreement Among Underwriters, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earningsif any, and will deliver to the Representative:
Selected Dealers Agreement; (i6) concurrently with furnishing such quarterly reports to its stockholders, statements of income copies 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 CommissionRegistration Statement, 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
(vi) any additional information of a public nature concerning the Company (Prospectus and any future subsidiary) or its businesses which the Representative may request. During such 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(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 Prospectuspreliminary prospectus, and all amendments and supplements thereto, including any prospectus prepared after as may be requested for use in connection with the effective date offering and sale of the Registration StatementShares 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 Regulatory, Inc. (the "NASDR"); and (8) the quotation of the Shares on NASDR's Automated Quotation System ("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 each case as soon as available and in such quantities as the Representative may requestconnection with any meetings or presentations).
(kh) On or before the effective date of the Registration StatementClosing Date, the Company shall provide sell to you, the Representative with true original copies Underwriters' Warrant to purchase 150,000 Shares for an aggregate purchase price of duly executed, legally binding and enforceable agreements $10.
(i) If this Agreement shall be terminated pursuant to whichany of the provisions hereof (otherwise than by notice given by you pursuant to Section 8 hereof) 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 twelve one (121) months from year after the effective date commencement of the Registration Statement, each public offering of the CompanyShares by you, without HBW's stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she prior written consent, the Company will not, directly or indirectly:
(1) offer, issue, offer sell, contract to sell, sell, grant an 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 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 securities of Common 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, or for stock options granted to employees pursuant to the Company's Stock Option Plan attached as an exhibit to the Registration Statement; or
(2) redeem any of its securities outstanding as of the closing date of the Public Offering, or pay any options, rights dividends or warrants with make any other cash distribution in respect to 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 shares such contemplated stock redemption or dividend or distribution within five business days after the date HBW receives written notice of Common Stock. the proposed action.
(k) On or before prior to 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.obtain:
(l1) Neither the Company, the Subsidiary, nor any from each of their respective officers, its officers and directors, stockholdershis or her enforceable written agreement, 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 Actsatisfactory to your counsel, 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, that for a period of five twenty-four (524) years from months after the date hereof, use its best efforts to maintain Effective Date (or any longer period required by any jurisdiction in which the Amex quotation offer and sale of the Common Stock Shares is to the extent outstanding.be registered or qualified);
(q3) For a period from each of five (5) years from the Closing Dateother shareholders, the Company shall furnish his or her enforceable written agreement, in form and substance satisfactory to the Representative at the Company's sole expenseyour counsel, (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 after the effective date of Effective Date (or any longer period required by any jurisdiction in which 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, offer and 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 is to be registered 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 effectiqualified)
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 follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised become effective, and furnished with a copy, or to which the Representative shall have objected 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 (i) when of the time and date of any filing of any post-effective Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when 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, 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 shall issue any state securities commission 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 fifth 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 Commission, which differs from the corresponding prospectus on file at the 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 a reasonable amount of time prior to such proposed filing or use, as the case may be, and consent will not file any such prospectus to which the Representative be unreasonably withheld or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall objectdelayed.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Shares 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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) As soon 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 practicableyou 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 (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 any no event not later than forty-five (45) days beyond one year after the end 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 12Act), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, the Company which consolidated earning statement 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, satisfy 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.
(hl) During a period If this Agreement shall be terminated by the Underwriters because of five (5) years after any inability, failure or refusal on the date hereofpart 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 will furnish agrees to its stockholders, as soon as practicable, annual reports reimburse you and the other Underwriters for all out-of-pocket expenses (including financial statements audited travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by independent public accountantsyou) and unaudited quarterly reports of earnings, 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 reasonably incurred by you 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedconnection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies 75th day after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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 notnot to, directly or indirectly, issuewithout the prior written consent of the Representative on behalf of the Underwriters, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into 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 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. On 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 before 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 in satisfaction of the Company’s earn-out obligations in connection with the acquisition of substantially all the assets of MobileNet, Inc. 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 Company shall deliver instructions to form of Exhibit A hereto (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 ledgersUp Agreements”).
(lo) Neither Prior to the CompanyClosing Date or the Additional Closing Date, as the case may be, the SubsidiaryCompany will furnish to you, nor as promptly as possible, copies of any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning unaudited interim consolidated financial statements of the Rules Company and Regulationsits consolidated subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will takecomply 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 todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, The Company will timely file with NASDAQ Global Market (i“NASDAQ”) but in no event more than five (5) business days before the effective date all documents and notices required by NASDAQ 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) yearscompanies that have or will issue securities that are traded on NASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 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 as promptly as practicable effective, if they have 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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) 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 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 shall issue any state securities commission 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 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, including in accordance with any timing requirements of Rule 424(b).
(b) The Company will make available to you, or furnish upon request, 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 make available to you, or furnish upon request, 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 fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice make available, or furnish upon request, 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 make available, or furnish upon request, 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 made available or 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 reasonable judgment of the Company or 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 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 make available, or furnish upon request, 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.
(gi) As soon 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering 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. No registration or qualification of its Common Stock for sale in non issuer transactions under (or exemptions from the application of) the Blue Sky laws of each state are necessary to permit market making transactions and secondary trading.
(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 beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of ending five (5) years after from the date hereof, the Company will make available to you and, upon your request, to each of the other Underwriters, or furnish to its stockholdersupon request, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD National Association of Securities Dealers, Inc. (the “NASD”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(il) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jm) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 180th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 Closing Date, a letter or letters, substantially in the Company shall deliver instructions form of Exhibit A hereto (except to the Transfer Agent authorizing it extent certain letters are tailored with respect to place appropriate legends on the certificates representing exercise of stock options) (the securities subject to “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-up Agreements and Up Period, the Company issues an earnings release or announces material news or a material event relating to place appropriate stop transfer orders 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. The foregoing restrictions shall not apply to: (a) the sale of Common Stock to the Underwriters pursuant to this Agreement; (b) the grant or exercise of stock options granted pursuant to the Company's ledgers.
(l) Neither ’s 1995 and 2005 Incentive and Non-Qualified Stock Option Plans, provided that, except to the extent provided in the Lock-Up Agreements with respect to certain officers, directors and shareholders of the Company, the Subsidiary, nor restrictions shall apply to any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning shares of the Rules Company’s capital stock issued upon such exercise; (c) repurchases by the Company of its Common Stock pursuant to its share repurchase program; or (d) sales or other dispositions of shares of any class of the Company’s capital stock, in each case that are made exclusively between and Regulationsamong such Selling Shareholder and members of the such Selling Shareholder’s family or affiliates of the such Selling Shareholder; provided that it shall be a condition to any such transfer described in clause (c) that (i) the transferee/donee agrees with the Representative, on behalf of the Underwriters, to be bound by the terms of the lock-up letter agreement substantially in the form of Exhibit A hereto, (ii) no filing by any party (donor, donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the Lock-Up Period), (iii) each party (donor, donee, transferor or transferee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act and the Exchange Act) to make, and shall agree to not voluntarily make, any public announcement of the transfer or disposition, and (iv) such Selling Shareholder notifies the Representative at least two business days prior to the proposed transfer or disposition.
(n) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will takefurnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any quarterly 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 todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any of the Shares, except with respect to repurchases by the Company of its Common Stock pursuant to the extent outstandingits share repurchase program.
(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 will timely file with NASDAQ all documents and notices required by NASDAQ of companies that it have or 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 securities 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 effectiare traded
Appears in 1 contract
Sources: Underwriting Agreement (American Physicians Service Group 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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 shall issue any state securities commission 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 fifth 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 Commission, which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effectiveconsent shall not be unreasonably withheld, whether delayed, 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 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 objectconditioned.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 amendment or supplementation;
(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 (“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 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 best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance 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 Section 10 the Commission pursuant to Sections 13, 14 and 15 of the ActSecurities Exchange Act of 1934, each such amendment or supplement to be satisfactory to Underwriters' Counselas amended, and the Company will furnish to rules and regulations of the Underwriters copies of such amendment or supplement as soon as available Commission thereunder (collectively, the “Exchange Act”) in the manner and in such quantities as within the Underwriters may requesttime periods required by the Exchange Act.
(gj) As soon 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 practicable, but 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 not later than fortythat 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-five issuer transactions under (45or obtain exemptions from the application of) days 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 end date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of the 12Rule 158), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hl) During a the period of ending five (5) years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature 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.
(and m) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe other Underwriters for all out-of-pocket expenses (including travel expenses and up to $150,000 in reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) are consolidated, and will be accompanied reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(in) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jo) The Company will furnish 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 Representative or Investment Company Act of 1940, as amended.
(p) For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 180th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue(1) offer for sale, offer sell, contract to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, into or 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 other than shares of Common Stock issued pursuant to employee benefit plans, qualified stock option plans, employee stock purchase plans, or any 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. On Stock or before securities convertible into or exercisable or exchangeable for Common Stock (other than the Closing Date, the Company shall deliver instructions grant of options pursuant to the Transfer Agent authorizing it to place appropriate legends option plans or employee stock purchase plans existing on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
date hereof), (l2) Neither the Companyenter into any swap or any other agreement or any transaction that transfers, 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 takein 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; 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 or becomes aware that material news or a material event relating to the Company will occur 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.
(q) 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-Up Agreement (as defined in Section 6(oo) 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.
(r) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(s) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(t) The Company will not at any time, directly or indirectly, take any action designed todesigned, or which might in the future 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 securities of the CompanyShares.
(mu) 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 effect and 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 listing 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 StockNASDAQ Capital Market; (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 effectitimely file with NASDAQ all documents and notices required by
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 the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the Shares Firm 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 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, 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 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 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 any state securities commission authority 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 orderorder or suspension.
(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 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 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 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 Underwriter or ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' 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 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' 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 reasonably satisfactory to Underwriters' Counsel, 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 RepresentativeUnderwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a11 (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 five seven (57) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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;
(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' 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 CompanyCompany (or any future subsidiaries); and
(vi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses which the Representative Underwriter may request. During such 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 any of its subsidiary(ies) subsidiaries are consolidated, 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 (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, each of which shall be satisfactory to the Underwriter.
(j) The Company will furnish or cause to be furnished to the Representative or on the Representative's orderUnderwriter, without charge, at such place as the Representative 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 manually 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 Underwriter may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative Underwriter with true original copies of the duly executed, legally binding and enforceable agreements Lock-up Agreements pursuant to which, which for a period of twelve thirteen (1213) months from the effective date of the Registration Statement, each of the Company's stockholders officers and directors and all holders of five percent (5%) or more of the shares of Common Stock and all holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees has agreed that it or he or she will not, directly or indirectly, issue, offer to sell, sell, make a short sale (including without limitation short against the box), 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 Underwriter, enter into any swap or other agreement that transfers in whole or in part any of the economic consequences or ownership of the Common Stock, whether any such transactions were to be settled by delivery of Common Stock, other securities, cash or otherwise, without the prior written consent of the Underwriter (collectively, the "Lock-up Agreements"). During In addition, during the 12 thirteen (13) month period commencing on with the effective date of the Registration Statement, the Company shall not, without the prior written consent of the RepresentativeUnderwriter, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, distribute or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights securities convertible into or warrants with respect to any exchangeable or exercisable for 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 stock ledgers.
(l) Neither the Company, the Subsidiary, Company nor any of their respective its officers, directors, stockholders, nor any of their respective 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 Firm Securities and the Option Securities, if any, 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 CompanyCompany or any of its Affiliates (as defined herein).
(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 report as may be required pursuant to Rule 463 under of the ActRegulations) 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 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 of the Registration Statement) which have been read by the Company's independent public accountants, accountants as stated in their letters to be furnished pursuant to Sections 6(jSection 6(l) and 6(m) hereof.
(p) The Company shall cause the Common Stock Securities to be quoted on Amex and, the Bulletin Board or listed on a comparable national securities exchange and for a period of five seven (57) years from the date hereof, use its best efforts to maintain the Amex Bulletin Board quotation or other such exchange listing of the Common Stock Securities to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative Underwriter at the Company's sole expense, 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, 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 Securities, and (ii) but in no event more than thirty (30) days after 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 five seven (57) years.
(s) The Company hereby agrees that it will not, without the prior written consent of the Underwriter, for a period of twelve thirteen (1213) 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 Firm Securities 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 five percent (5% %) or more of the shares of Common Stock; , except as provided in subsection (ii) the payment for such securities with any form of consideration other than cashthis subparagraph; 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 maximum number of shares of Common Stock or other securities of the Representative's Securities, Company purchasable at any time pursuant to options or warrants issued by 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 effectito exceed ________ shares reserved
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and the provisions time and date of Rule 430A promulgated under any filing of any post-effective amendment to the Act will be relied upon, when 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 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 shall issue any state securities commission 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.
(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 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 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 Registration Statement or the Prospectus (including any revised prospectus which that may, in the judgment of the Company proposes for use or the Representative, be required by the Underwriters in connection with Act or requested by the offering Commission.
(d) During the Prospectus Delivery Period, the Company will furnish a copy of the Securities which differs from the corresponding prospectus on file at the Commission at the time any amendment or supplement to the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant the Prospectus or any Issuer Free Writing Prospectus to Rule 424(b) of the Rules you and Regulations), counsel for Underwriters and will furnish the Representative with copies of any such amendment or supplement a reasonable amount of time obtain your consent prior to such proposed filing or use, as any of those with the case may be, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 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. In addition, 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.
(gi) As soon The Company will use its reasonable best efforts to 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering 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 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 beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“Nasdaq”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company (and any future subsidiaryas you may reasonably request; provided that the Company’s obligation pursuant to this Section 5(k) or its businesses which the Representative may request. During such seven-year period, if the Company has an active subsidiary, the foregoing financial statements will shall be on a consolidated basis satisfied to the extent that the accounts of the Company and its subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for files or furnishes 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 such document or report 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 ledgersE▇▇▇▇.
(l) Neither 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) or if this Agreement shall be terminated by the CompanyUnderwriters 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 SubsidiaryCompany 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, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules but excluding wages and Regulationssalaries paid by you) will take, directly or indirectly, any action designed to, or which might reasonably incurred by you in the future reasonably be expected connection herewith in an amount not to cause or result in, stabilization or manipulation of the price of any securities of the Companyexceed $20,000.
(m) The Company shall will apply the net proceeds from the sale of the Securities Shares to be sold by it hereunder in accordance in all material respects with the manner, and subject to statements under the conditions, set forth under "caption “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 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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 fifth 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Commission Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 1933 Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(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 beginning on the date hereof and ending five (5) years after from the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
you (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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD or Nasdaq or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(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 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 Representative Underwriter because of any inability, failure or refusal on the Representative's order, without charge, at such place as part of the Representative may designate, copies Company to perform in all material respects any agreement herein or to comply in all material respects with any of each Preliminary Prospectusthe terms or provisions hereof or to fulfill in all material respects any of the conditions of this Underwriting Agreement, the Registration Statement Company agrees to reimburse you for all out-of-pocket expenses (including travel expenses and any pre-effective or post-effective amendments thereto (two the fees and expenses of which copies will be signed counsel for the Underwriter, but excluding wages 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, salaries paid by you) reasonably incurred by you in each case as soon as available and in such quantities as the Representative may requestconnection herewith.
(k) On or before The Company will apply the effective 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.
(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 Registration StatementProspectus first filed pursuant to Rule 424(b) under the 1933 Act, without your prior written consent, the Company shall provide the Representative with true original copies of duly executed, legally binding will not and enforceable agreements pursuant to which, for a period of twelve (12) months from the effective date of the Registration Statement, will cause 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, its subsidiaries to not (i) directly or indirectly, issue, offer announce the intention to sell, sell, grant an option for the sale offer or purchase of, assign, transfer, pledge, hypothecate contract to sell or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant collectively, “Company Securities”) or any rights to Rule 144 purchase Company Securities, or file any registration statement under the 1933 Act with respect to any 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, distributeforegoing, or otherwise dispose of(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 delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriter pursuant to this Underwriting Agreement and except for (x) sales of shares of Common Stock or any options, rights or warrants with respect to any 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. On 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 before the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lo) Neither the Company, the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning The Company will comply with all provisions of the Rules and Regulationsundertakings contained in the Registration Statement.
(p) The Company will takenot at any time, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any of the Common Stock to the extent outstandingShares.
(q) For The Company filed with Nasdaq a period notice of five (5) years from the Closing Datesale of additional shares on September 12, the Company shall furnish to the Representative at the Company's sole expense2005, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list and will timely file with Nasdaq all documents and notices required by Nasdaq of holders of all of the Company's companies that have or will issue securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Companythat are traded on Nasdaq.
(r) As soon 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 practicable, (ithe transfer agent) 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) yearsCommon Stock.
(s) The Company hereby agrees will have an annual audit prepared by an accounting firm of nationally recognized standing that it will not, for a period of twelve is registered and in good standing with the Public Company Accounting Oversight Board (12“PCAOB”) months from the effective date and is “independent” of the Registration StatementCompany under the 1933 Act, 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 Exchange Act 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 arrangementsPCAOB’s rules.
(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 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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 fifth 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 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 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 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 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) 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 making of any shares of Common Stock additions thereto 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 changes 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 1 contract
Sources: Underwriting Agreement (NexPoint Residential 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 thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Securities Act or Exchange Act before termination of during any time that a prospectus relating to the offering of securities is required to be delivered under the Shares by the Underwriters Securities Act of which the Representative Underwriter and Underwriter's Counsel shall not previously have been advised and furnished with a copycopy a reasonable period of time prior to the proposed filing, or to which the Representative Underwriter shall have reasonably objected 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 Underwriter and confirm the notice in writing writing, (i) when the Registration Statement, as amended, becomes effectiveeffective and, if the provisions of Rule 430A 13 14 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, or the 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 best efforts to prevent the issuance of any stop or suspension order and if the Commission or any state securities commission authority shall enter a stop order or suspend such qualification at any time, the Company will make every 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 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 Representative, 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) Securities Act and the second business day following the execution Rules and delivery of this Agreement and (ii) the fifth 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 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 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 faithshall, in cooperation with the RepresentativeUnderwriter, 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 Underwriter 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 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 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.
(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 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 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' Underwriter'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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectithe
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 (or, at your discretion, our 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, or, in your discretion, counsel to the Company, for the registration or qualifi cation 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.
(c) The Company will furnish to you, without charge, four manually-signed copies, and such reasonable number of conformed 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 as promptly as practicable under the 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, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 amendment 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, supplement unless the Company shall not be required have first delivered copies of such amendment or supplement to qualify as a foreign corporation or file a general or limited you and your counsel and you and your counsel shall have given your 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 filing of such jurisdiction to continue amendment or supplement. Any such qualificationamendment or supple ment shall comply with the Act.
(f) During From and after the Effective Date, the Company will deliver to you, without charge, as many copies of the Prospectus or any amendment or supplement thereto as you may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time when a prospectus thereafter as the 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 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 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 Pro spectus 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) As soon as practicableThe Company will promptly pay all expenses in connection with (1) the preparation, but in any event not later than forty-five printing, filing, distribution and mailing (45including, without limitation, express delivery service) 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.
, each preliminary prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (hif any); (2) During 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 period of five registrar or transfer agent for the Common Stock; (5) years after the date hereofprinting, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Company will furnish to its stockholdersAgreement Among Underwriters, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earningsif any, and will deliver to the Representative:
Selected Dealers Agreement; (i6) concurrently with furnishing such quarterly reports to its stockholders, statements of income copies 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 CommissionRegistration Statement, 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
(vi) any additional information of a public nature concerning the Company (Prospectus and any future subsidiary) or its businesses which the Representative may request. During such 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(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 Prospectuspreliminary prospectus, and all amendments and supplements thereto, including any prospectus prepared after as may be requested for use in connection with the effective date offering and sale of the Registration StatementShares 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 Regulatory, in each case as soon as available Inc. (the "NASDR"); and in such quantities as (8) the Representative may requestquotation of the Shares on NASDR's Automated Quotation System ("NASDAQ").
(kh) On or before the effective date of the Registration StatementClosing Date, the Company shall provide sell to you the Representative with true original copies Underwriters' Warrant to purchase 100,000 Shares for an aggregate purchase price of duly executed, legally binding $10. The Underwriters' Warrant shall be divided between you and enforceable agreements your designees in such manner as you shall jointly direct by written instruction to the Company at least two business days prior to the Closing Date.
(i) If this Agreement shall be terminated pursuant to whichany of the provisions hereof (otherwise than by notice given by you pursuant to Section 8 hereof) 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; provided, however, the Company shall not be so obligated to reimburse you if this Agreement is terminated by reason of a failure to satisfy the condition set forth in Section 7(k) hereinbelow by reason of your unwillingness to modify the underwriting arrangements pertaining to sale of the Shares and/or the participation by you in the sale of the Shares, as may be requested by the NASDR.
(j) For a period of twelve ninety (1290) months from days after the effective date commencement of the Registration Statement, each public offering 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 Shares by you, without your prior written consent, the Company will not, directly or indirectlynot offer, issue, offer sell, contract to sell, sell, grant an 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 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 securities of Common 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, or for stock options granted to employees pursuant to the Company's Omnibus Stock or any options, rights or warrants with respect Plan attached as an exhibit to any shares of Common Stock. the Registration Statement.
(k) On or before prior to the Closing Date, the Company shall deliver instructions obtain 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 Transfer Agent authorizing it Effective Date (or any longer period required by NASDAQ or any jurisdiction in which the offer and sale of the Shares is to place appropriate legends on be registered or qualified), he or she will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the certificates representing sale of, or otherwise dispose of, directly or indirect ly, any securities of the securities subject to Company (including without limitation any shares of Common Stock), owned by him or her as of the Lock-Closing Date, whether upon exercise of warrants, stock options or otherwise, without Nichols, Safina, ▇▇▇▇▇▇ & Co., Inc.'s prior written consent (the "Lock- up Agreements and to place appropriate stop transfer orders on the Company's ledgersLetter").
(l) Neither The Company has reserved and shall continue to reserve and keep available the Company, the Subsidiary, nor any maximum number of their respective officers, directors, stockholders, nor any shares of their respective affiliates (within the meaning its authorized but unissued Common Stock and other securities for issuance upon exercise 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 CompanyUnderwriters' Warrant.
(m) The For a period of five years after the date of this Agreement, the Company shall:
(1) retain ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another nationally recognized firm of independent public accountants, as its auditors, and at its own expense, shall apply cause such indepen dent certified public accountants to review the net proceeds from the sale Company's financial statements for each of the Securities in first three fiscal quarters of each fiscal year prior to the mannerannouncement of quarterly financial information, the filing of the Company's Form 10-QSB quarterly reports and the mailing of quarterly financial information to its stockholders;
(2) cause the Company's Board of Directors to meet not less frequently than quarterly, upon proper notice, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion cause an agenda and minutes of the net proceeds will preceding meeting to be useddistributed to directors prior to each such meeting;
(3) distribute to its security holders, directly or indirectlywithin 120 days after the end of each fiscal year, to acquire any securities issued 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 CompanyCommission 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) The For a period of five years after the date of this Agreement, the Company shall timely file all 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 stockholders' 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 reportsfiscal year and for the twelve months then ended, forms accompanied by a copy of the certificate or other documents report thereon of such independent certified public accountants;
(2) (x) for so long as may be required (includingthe Company is a reporting company under any of Sections 12(b), but not limited to, a Form SR as may be required pursuant to Rule 463 under 12(g) or 15(d) of the Act) from time to time, under 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, and or (y) at such times as the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements Company is not a reporting company under the Act, 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 for each such fiscal quarter and the Rules comparable period of the preceding year, which statements need not be audited;
(3) as soon as practicable after they have first been distributed to stockholders of the Company, copies of each annual and Regulationsinterim financial or other report or communica tion sent by the Company to its stockholders (except to the extent duplicative of information furnished pursuant to any other clause of this Section 4(n));
(4) as soon as practicable following release or other dissemination, copies of every press release and every material news item and article in respect of the Company or its affairs released or otherwise disseminated by the Company;
(5) promptly following receipt thereof, copies of the Company's daily transfer sheets prepared by the Company's transfer agent and a list of stockholders; and
(6) such additional documents and information with respect to the Company and its affairs, if any, as you may from time to time reasonably request.
(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[Intentionally deleted].
(p) The On or prior to the Effective Date, the Company shall cause will have accomplished the Common Stock quotation of the Shares on the NASDAQ SmallCap Market, subject only to notice of issuance and the registra tion of such securities under the Exchange Act. For a period of five years from the date of this Agreement, the Company agrees, at its sole cost and expense, to take all necessary and appropriate action such that its securities continue to be quoted on Amex andNASDAQ, for a period provided that the Company otherwise complies with the prevailing requirements of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock to the extent outstandingNASDAQ.
(q) For a period of five (5) two 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 Securitiesthis Agreement, 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 effectiseek to amend its certificate
Appears in 1 contract
Sources: Underwriting Agreement (Galvestons Steakhouse 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 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 Exchange Act before termination of the offering of the 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 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 writing, (i) when the Registration Statement, as amended, becomes effective, 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, or the 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 any state securities commission authority 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 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 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 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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwritersers' 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 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 forty-five (45) 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) 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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, affairs which was released or prepared by or on behalf of the Company; and
(vi) 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 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(ies) 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 ("Transfer Agent") 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 Prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative Representatives may reasonably request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative Representatives with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, which for a period of twelve (12) 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 Principal Stockholders agrees that it he, she or he or she it, as the case may be, 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 written consent of the Representatives Representative (collectively, the "Lock-up Agreements"). During the 12 month two year period commencing on 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 Agreements Agreement and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, the Subsidiary, nor any of their respective its officers, directors, stockholders, nor any of their respective 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 Representative 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 Section 6(j) hereof.
(p) The Company shall cause the Common Stock Securities to be quoted listed on Amex NASDAQ and, for a period of five seven (57) years from the date hereof, use its best efforts to maintain the Amex NASDAQ quotation of the Common Stock Securities to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative Representatives at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, 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) 30 days after 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▇ ▇▇▇ ▇▇▇'▇ OTC Manual and est efforts to continue such inclusion for a period of not less than five (5) yearsas long as the securities are outstanding.
(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, not without the prior written consent of the Representative Representatives and Underwriters' Counsel, issue, directly or indirectly, 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 equal to the lesser of two (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 (52) years after the effectieffective 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 as promptly as practicable or the 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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.
(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 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 prepare all amendments thereto (including all financial statements and file 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 an appropriate amendment or supplement in accordance with Section 10 of pursuant to ▇▇▇▇▇, except to the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the extent permitted by Regulation S-T.
(e) The Company will furnish make generally available to the Underwriters copies of such amendment or supplement its security holders 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) 60 days after the end close 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 Representativecovered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 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" (12as defined in said Rule 158) consecutive months after the effective date of the Registration Statement.
(hf) 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 such statements and reports as are or may be required of it as the issuer of the Securities to continue such qualifications in effect for so long a period as the Representatives may reasonably 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 five (5) years after from the date hereof, the Company will furnish deliver to the Representatives and, upon request, to each of the other Underwriters, copies of each annual report of the Company and each other report furnished by the Company to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, shareholders; and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholdersRepresentatives, 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 any other reports (financial or other) mailed which the Company shall publish or otherwise make available to stockholders;
(iv) any of its security holders as such and, as soon as they are available, copies of all any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;.
(vh) every press release and every material news item or article of interest to The Company will use the financial community in respect net proceeds received by it from the sale of the Company, or its affairs, which was released or prepared Securities sold by or on behalf it in the manner specified in the Prospectus Supplement under "Use of the Company; and
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedProceeds".
(i) The Immediately following the execution of this Agreement, the Company will maintain prepare a transfer agent prospectus supplement, dated the date hereof (the "Transfer AgentProspectus Supplement"), containing the public offering price of the Securities, the underwriting discounts and commissions, the plan of distribution of the 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 necessary under required by Rule 424(b), the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockBase Prospectus.
(j) The Company will furnish to During the Representative or period beginning on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement date hereof and any pre-effective or post-effective amendments thereto (two of which copies will be signed continuing through 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 will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any of its subsidiaries which are substan tially similar to the Transfer Agent authorizing it to place appropriate legends on Securities (other than the certificates representing Securities) or any securities convertible into or exchangeable or exercisable for any debt securities of the securities subject Company or any of its subsidiaries which are substantially similar to the Lock-up Agreements and Securities or any rights, warrants or options to place appropriate stop transfer orders on purchase any debt securities of the Company's ledgersCompany 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) Neither In accordance with the Company, the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning provisions of the Rules and Regulations) will takeCuba Act, 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 mannerif applicable, and subject without limitation to the conditions, set forth under "Use provisions 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 Section 6 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 indemnify each Underwriter against any action and all losses, claims, damages, liabilities and expenses (including attorneys' fees) arising out of or actions which may prevent or disqualify based upon any violation by the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act Company of the Representative's SecuritiesCuba Act.
(v) For a period of five (5) years after the effecti
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 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 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 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 (i) when the Registration Statement, as amended, becomes effective, 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 threat of the initiation, or the 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 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 any state securities commission authority 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 fifth 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 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 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 Representatives or ▇▇▇▇▇▇Mintz, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Underwriters' Counsel") ), shall objectobject 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 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 of the Registration Statement 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 RepresentativeRepresentatives, 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 StatementEffective Date.
(h) During a period ending on the earlier of (i) 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, stockholders annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the RepresentativeRepresentatives:
(i) concurrently with furnishing such quarterly reports to its stockholders, financial statements of income of the Company for each quarter quarter, in the form furnished to filed with the Company's stockholders and certified by the Company's principal financial or accounting officerCommission;
(ii) concurrently with furnishing such 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 certificate 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, affairs which was released or prepared by or on behalf at the direction of the Company; and
(vi) 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 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(ies) subsidiary are consolidatedrequired 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 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 StockStock for so long as the Company has a class of equity securities registered under the Exchange Act.
(j) The Company will furnish to the Representative Representatives or on the Representative's Representatives' order, without charge, at such place as the Representative Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two (2) of which 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 of the Registration StatementEffective Date, in each case as soon as available and in such quantities as the Representative 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 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. 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, the Subsidiary, Company nor any of their respective its officers, directors, directors or stockholders, nor any of their respective affiliates or Associates (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 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 Shares in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No 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 (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 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 Representative 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 letter to be furnished pursuant to Sections Section 6(j) hereof.. -------
(p) The Company shall use its best efforts to cause the Common Stock to be quoted on Amex and, Nasdaq or a national securities exchange for a period of five seven (57) years from the date hereof, and shall use its best efforts to maintain the Amex Nasdaq quotation or exchange listing of the Common Stock to the extent outstanding.
(q) For a period of five three (53) years from the Closing Date, on a quarterly basis, the Company shall instruct the Transfer Agent to furnish to the Representative Representatives, 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 list of Depository Trust Company "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Companyparticipant holders."
(r) As The Company hereby agrees, 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 from the effective date of the Registration StatementEffective 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 for until the earlier of (i) seven (7) years from the Effective Date and (ii) the first date when the Company no longer has a period class of not less than five (5) yearsequity securities registered under the Exchange Act.
(s) The Company hereby agrees that it will notthat, for a period of twelve thirteen (1213) months from the effective date Effective Date, it will not, without the written consent of the Registration StatementRepresentatives, 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 plans or similar arrangement arrangements permitting (i) the grant, issue, sale or entry into any agreement to grant, issue or sell sale of any option, warrant shares of Common Stock or other contract right securities of the Company (xi) 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 that is per share less than the greater higher of the public offering price of the Shares set forth herein and (A) the fair market value of the Common Stock on the date of grant or sale or and (yB) the initial public offering price (provided; however, if granted -------- ------- to any of its executive officers new senior officer hired by the Company after the date hereof, then at an exercise or directors or to any holder of 5% or more sale price per share less than the fair market value of the Common Stock; (iiStock on the date of grant or sale) the payment for such securities with any form of consideration other than cash; or and (iii) upon payment of less than the existence full purchase or exercise price for such shares of stock appreciation rights, phantom options Common Stock or similar arrangementsother securities of the Company.
(t) Until the completion of the distribution of the SecuritiesShares, 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 Representative 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.
(u) For a period equal to Until the lesser earlier of (i) five seven (57) years from the date hereof, and (ii) the sale to the public of the Representative's SecuritiesRepresentatives' 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 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 effectito 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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 fifth 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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 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.
(ge) The Company will cooperate with you and your counsel for the registration or qualification of the Shares 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, 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 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, 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 will make generally available to its security holders, in holders and the manner specified in Rule 158(b) Underwriter a consolidated earnings statement of the Rules Company and Regulations, and to the Representative, an earnings statement which its subsidiaries that will be in the detail required by, and will otherwise comply with, satisfy the provisions of Section 11(a) of the Act and Rule 158(a158 under the Act.
(g) 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 Rules Exchange Act in the manner and Regulations, which statement need not be audited unless within the time periods required by the Exchange Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a the period of five (5) ending three years after from the date hereof, if not otherwise available on ▇▇▇▇▇, the Company will promptly furnish to its stockholdersyou a copy of each proxy statement, as soon as practicable, quarterly or annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income report or other report 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 stockholders or filed with the Commission, the NASD National Association of Securities Dealers, Inc. (the “NASD”) or the Nasdaq Stock Market (“NASDAQ”) or any national 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
(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 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(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 If this Agreement shall terminate or shall be terminated after execution pursuant to clauses ("Transfer Agent"iv) andor (v) of Section 11 hereof, or if necessary under this Agreement shall be terminated by the jurisdiction Underwriter because of incorporation any inability, failure or refusal on the part of the CompanyCompany 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, a Registrar the Company agrees to reimburse you for all out-of-pocket expenses (which may be including travel expenses and reasonable fees and expenses of counsel for the same entity as the Transfer AgentUnderwriter, but excluding wages and salaries paid by you) for its Common Stockreasonably incurred by you in connection herewith.
(j) The Company will furnish apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the Representative or on statements under the Representative's order, without charge, at such place as the Representative may designate, copies caption “Use 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), Proceeds” in 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 If Rule 430A under the effective date of the Registration StatementAct is employed, the Company shall provide will timely file the Representative with true original copies of duly executed, legally binding and enforceable agreements Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to which, for Rule 424(b) under the Act.
(l) For a period of twelve (12) months from 60 days after the effective date of this Agreement, without your prior written consent, 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 Company will not, (i) directly or indirectly, issue, offer to sell, sell, grant an option for the sale offer or purchase of, assign, transfer, pledge, hypothecate contract to sell or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant collectively, “Company Securities”) or any rights to Rule 144 purchase Company Securities, or file any registration statement under the Act with respect to any of the Rules and Regulations foregoing or otherwise(ii) enter into any swap or dispose of any beneficial interest therein without the prior consent of the Representatives (collectivelyother agreement that transfers, 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 in whole or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose ofin 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 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 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 any options, rights or warrants with respect to any (D) for 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 Stock issuable upon conversion of the Company's ledgers’s Series A Mandatory Convertible Preferred Stock.
(lm) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(n) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future 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 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 RegulationsShares.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date will timely file with NASDAQ all documents 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 notices required by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereofNASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(p) The Company shall cause 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 to is listed, a registrar (which, if permitted by applicable laws and rules may be quoted on Amex and, the same entity as the transfer agent) 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 1 contract
Covenants and Agreements of the Company. 5.1 The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Prior to the termination of the offering of the Common Stock, the Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Underwriter a copy for the Underwriter’s review prior to filing and will not file any document under the Act such proposed amendment or Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or supplement to which the Representative shall have objected or which is not in compliance with Underwriter reasonably objects. Subject to the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereofforegoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to the Underwriter of such timely filing. The Company will promptly advise the Representative and confirm the notice in writing Underwriter (i1) when the Registration StatementProspectus, as amendedand any supplement thereto, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has shall have been filed in accordance (if required) with said the Commission pursuant to Rule 430A and 424(b) or when any post-effective Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the Offering, any amendment to the Registration Statement becomes shall have been filed or become effective; , (ii3) 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 for any additional information, (4) of the Company’s intention to file, or prepare any supplement or amendment to, the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, (5) 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 (iii6) 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 Shares for offering or sale in any jurisdiction or of the initiation, institution or the threatening, threatening of any proceeding for that such purpose; (iv) of . The Company will use its best efforts to prevent the receipt issuance 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 any state securities commission shall enter a such stop order or suspend the suspension of any such qualification at any timeand, the Company will make every effort if issued, to obtain promptly as soon as possible the lifting of such orderwithdrawal thereof.
(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) (orIf, 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 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 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 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 Shares is required to be delivered under the Securities Act, any event occurs as a result of which the Pricing Disclosure Package (prior to availability of the Prospectus) or the Prospectus as then supplemented or amended 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 existing at the time of delivery of such Pricing Disclosure Package or Prospectus under which they were made, not misleading, or if it shall be necessary to amend or supplement the Registration Statement, the Pricing Disclosure Package or the Prospectus to comply with the Securities Act or the Exchange Act, the Company promptly will (1) notify the Underwriter of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Prospectus to the Underwriter in such quantities as the Underwriter may reasonably request.
(c) The Company will not, without the prior written consent of the Underwriter, (i) make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Annex I hereto and any electronic road show previously consented to by the Underwriter, or (ii) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the Offering or the Shares. If at any time any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, which any Issuer Free Writing Prospectus as then amended or supplementedsupplemented would, includes in the judgment of the Underwriter or the Company, conflict with the information in the Registration Statement or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriter or the Company, 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 madeexisting at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it is shall be necessary at any time to amend the Prospectus to comply with the Actor supplement any Issuer Free Writing Prospectus, the Company will notify the Representative Underwriter promptly and and, if requested by the Underwriter, prepare and file with furnish without charge to the Commission Underwriter an appropriate amendment or supplement (in accordance with Section 10 of the Act, each such amendment or supplement to be form and substance satisfactory to Underwriters' Counselthe Underwriter) that will correct such statement, and the Company will furnish to the Underwriters copies of omission or conflict or effect such amendment or supplement as soon as available and in such quantities as the Underwriters may requestcompliance.
(gd) The Company has complied and will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus.
(e) 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 will make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, holders and to the Representative, Underwriter an earnings statement or statements of the Company and its subsidiaries which will be in the detail required by, and will otherwise comply with, satisfy the provisions of Section 11(a) of the Securities Act and Rule 158(a) of 158 under the Rules and Regulations, which statement need not be audited unless required by the Securities Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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.
(jf) The Company will furnish to the Representative or on Underwriter and counsel for the Representative's orderUnderwriter, without charge, at such place signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter or a dealer may be required by the Securities Act, as many copies of the Prospectus and any supplement thereto as the Representative Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the Offering.
(g) The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions as the Underwriter may designate, copies will maintain such qualifications in effect so long as required for the distribution of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed Shares and will include all financial statements and exhibits)pay any fee required by FINRA in connection with its review of the Offering; 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 service of process in suits, other than those arising out of the ProspectusOffering or sale of the Shares, and all amendments and supplements thereto, including in any prospectus prepared after jurisdiction where it is not now so subject.
(h) During the effective period of 30 days from the date of the Registration StatementProspectus (the “Lock Up Period”), in each case as soon as available and in such quantities as without the Representative may request.
(k) On or before the effective date prior written consent of the Registration StatementUnderwriter, 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 (12i) 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, sell, agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate borrow or otherwise encumber or dispose of any shares Relevant Security, or make any announcement of Common Stock any of the foregoing, (ii) will not establish or securities convertible intoincrease any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Relevant Security, exercisable and (iii) will not otherwise enter into any swap, derivative or exchangeable for other transaction or evidencing arrangement that transfers to another, in whole or in part, any right economic consequence of ownership of a Relevant Security, whether or not such transaction is to purchase be settled by delivery of Relevant Securities, other securities, cash or subscribe for other consideration; and the Company will obtain an undertaking (“Lock-Up Agreement”) in substantially the form of Annex II hereto of each of its officers and directors listed on Schedule III attached hereto not to engage in any shares of the aforementioned transactions on their own behalf, other than, in the case of each of the foregoing clauses, the sale of Shares as contemplated by this Agreement and the Company’s issuance of Common Stock (either w) pursuant to Rule 144 the Company’s Dividend Reinvestment and Stock Purchase Plan; (x) upon the exercise of currently outstanding options; (y) upon the Rules grant and Regulations exercise of options under, or otherwise) or dispose the issuance and sale of any beneficial interest therein without the prior consent of the Representatives (collectivelyshares pursuant to, the "Lock-up Agreements"). During the 12 month period commencing employee stock option plans in effect on the effective date of hereof, each as described in the Registration Statement, Statement and the Prospectus; and (z) pursuant to the exercise of warrants attached to the Company’s outstanding BONUSESSM Units. The Company will not file a registration statement under the Securities Act in connection with any transaction by 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 person that is prohibited pursuant to the Transfer Agent authorizing it foregoing, except for registration statements on Form S-8 relating to place appropriate legends on employee benefit plans or Form S-4 relating to corporate reorganizations or other transactions under Rule 145. Notwithstanding the certificates representing foregoing, if (1) during the securities subject to last 17 days of the Lock-up Agreements and Up Period the Company issues an earnings release or material news or a material event relating to place appropriate stop transfer orders 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 Company's ledgerslast day of the Lock-Up Period, the restrictions imposed by the immediately preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, as applicable, unless the Underwriter waives, in writing, such extension. The Company will provide the Underwriter and each officer and director of the Company listed on Schedule II attached hereto with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period.
(li) Neither The Company shall use its best efforts to have the CompanyShares admitted and authorized for listing on the NYSE, and satisfactory evidence of such admission and authorization for listing shall be provided to the SubsidiaryUnderwriter, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates if obtained.
(within the meaning of the Rules and Regulationsj) The Company will not take, directly or indirectly, any action designed to, to or which that would constitute or that might in the future reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any securities security of the CompanyCompany to facilitate the sale or resale of the Common Stock.
(mk) The Company shall will apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, Shares as set forth under "the caption “Use of Proceeds" ” in the ProspectusPricing Disclosure Package. No portion of The Underwriter, severally and not jointly, covenants and agrees with the net proceeds Company that the Underwriter will be used, directly not use or indirectly, refer to acquire any securities issued by the Company.
“free writing prospectus” (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 defined in Rule 463 405 under the Securities 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 Company if the Underwriter’s use of or indirectly, any press release or other communication or hold any press conference with respect reference to such “free writing prospectus” would require the Company or its activities or to file with the offering contemplated hereby, other than trade releases issued Commission any “issuer information” (as defined 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 Rule 433 under the Act of the Representative's SecuritiesSecurities Act).
(v) For a period of five (5) years after the effecti
Appears in 1 contract
Sources: Underwriting Agreement (New York Community Bancorp Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as followsAgent:
(a) The Company shall use its best efforts To deliver promptly to cause the Agents such number of the following documents as they may reasonably request during the period in which a prospectus relating to the Notes is required to be delivered under the Act: (i) copies of the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after (excluding exhibits other than the effective date computation of the Registration Statementratio of earnings to fixed charges, file the Indenture and this Agreement), (ii) the Basic Prospectus and the Prospectus and (iii) any amendment to documents incorporated by reference in the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.Prospectus;
(b) As soon as To prepare a Pricing Supplement with respect to any Notes to be offered and sold to or through the Company is advised or obtains knowledge thereofAgents pursuant to this Agreement and, after approval of such Pricing Supplement by the Company will advise Agents, to file such Pricing Supplement with the Representative Commission pursuant to and confirm the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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 424 (b) under the Act;
(c) To advise each Agent promptly of any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (ii) of the issuance by the Commission of any stop order or of the initiation, or the threateningProspectus and to afford the Agents a reasonable opportunity to comment on any such proposed amendment or supplement (other than any Pricing Supplement that relates to Notes not purchased through or by such Agent), of and if the Company effects any proceeding suspending the effectiveness amendment or supplementation of the Registration Statement or any order preventing the 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 suspending supplements such that such Agent is reasonably satisfied with the use of the Preliminary Prospectus or Registration Statement and the Prospectus, as then amended 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 any state securities commission 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 fifth business day after the effective date of the Registration Statement.supplemented;
(d) The Company will give If, during any period in which, in the Representative notice opinion 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 at the time the Registration Statement becomes effectiveCleary, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations)Gottlieb, and will furnish the Representative with copies of any such amendment or supplement 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 counsel for the RepresentativeAgents, 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 Notes is required to be delivered under the Act, any event shall have occurred occurs as a result of which, which in the opinion of counsel for the Company or Underwriters' Counsel, its 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 Act, to promptly notify the Agents (which notification shall be by telephone and confirmed in writing) promptly to suspend solicitation of purchases of the Notes; if the Company will notify shall decide to amend or supplement the Representative Registration Statement or the Prospectus, 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 which will correct such statement or omission or an amendment which will effect such compliance; the Act, each such Company will file no amendment or supplement to be satisfactory the Registration Statement or Prospectus relating to Underwriters' Counsel, sales of the Notes involving the Agents to which the Agents shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing; and the Company will furnish to the Underwriters copies Agents prior to the filing thereof a copy of any such amendment or supplement. Notwithstanding the foregoing, if, at the time any such event occurs or it becomes necessary to amend the Prospectus to comply with the Act, any Agent shall own any of the Notes with the intention of reselling them, or the Company has accepted an offer to purchase Notes but the related settlement has not occurred, the Company will promptly prepare and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Agents' consent to, nor their delivery of, any such amendment or supplement as soon as available shall constitute a waiver of any of the conditions set forth in Section 6;
(e) To timely file with the Commission during the period referred to in (d) above, any amendment or supplement to the Registration Statement or any Prospectus that may, in the judgment of the Company, the Agents or their respective counsel, be required by the Act or requested by the Commission;
(f) At or prior to filing with the Commission during the period referred to in (d) above, (i) any amendment or supplement to the Registration Statement or Prospectus or (ii) any document which upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus, to furnish a copy thereof to the Agents and in such quantities as to Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Underwriters may request.Agents;
(g) As soon as practicableTo advise the Agents immediately (i) when any post-effective amendment to the Registration Statement relating to or covering the Notes becomes effective or any subsequent supplement to the Prospectus has been filed, but in (ii) of any event not later than forty-five request or proposed request by the Commission for an amendment or supplement to the Registration Statement, to the Prospectus or for additional information, or (45iii) days after the end of the 12-month period beginning on issuance by the day after Commission of any stop order suspending the end of the fiscal quarter of the Company during which the effective date effectiveness of the Registration Statement occurs (ninety (90) days or any order directed to the Prospectus or any document incorporated therein by reference or the initiation or threat of any stop order proceeding or of any challenge to the accuracy or adequacy of any document incorporated by reference in the event that Prospectus or the end suspension of qualification for sale in any jurisdiction or any proceedings for such purpose;
(h) If, during the period referred to in (d) above, the Commission shall threaten or initiate any stop order proceeding in respect of the Registration Statement, to promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain the withdrawal of such fiscal quarter order as soon as possible, unless the Company shall, in its sole judgment, determine that it is the end of in the Company's fiscal yearbest interest not to do so;
(i) To 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. In addition, on the date on which the Company makes any announcement to the 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 pursuant to the Exchange Act, the Company shall will furnish the information contained in such announcement to each Agent, confirmed in writing and, subject to the provisions of subsections (b) and (c) of this section 4, will cause the Prospectus to be amended or supplemented to reflect the information contained in such announcement. The Company also will furnish each Agent with copies of all press releases or announcements to the general public;
(j) To 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) To make generally available to its security holders, in each case as soon as practicable but in any event not later than 15 months after the manner specified in Rule 158(b) acceptance by the Company of the Rules and Regulations, and an offer to the Representativepurchase Notes hereunder, an earnings statement covering the twelve-month period beginning after the latest of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such acceptance and (iii) the date of the Company's most recent annual report on Form 10-K filed with the Commission prior to the date of such acceptance which will be in the detail required by, and will otherwise comply with, satisfy the provisions of Section 11(a) of the Act and (and, at the option of the Company, Rule 158(a) 158 of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve );
(12l) consecutive months after the effective date So long as any of the Registration Statement.
(h) During a period of five (5) years after the date hereofNotes are outstanding, the Company will agrees to furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
Agents upon their request (i) concurrently with furnishing such quarterly copies of any reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders security holders generally (other than reports made solely to American Express or TRS) 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 any 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 with the Commission or any national securities exchange; (m) To use its best efforts 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;
(n) 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);
(o) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates or maturities of the Notes or a change in the principal amount of Notes remaining to be sold or similar changes) or the Company files with the Commission any document incorporated by reference into the Prospectus, the Company shall, concurrently with such amendment, supplement or filing, furnish the Agents with a certificate of the Chairman of the Board of Directors, President or any Vice President and of the Treasurer or an Assistant Treasurer of the Company 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 and 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), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate;
(p) 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 an amendment, supplement or filing (i) providing solely for a change in the interest rates or maturities of the Securities or a change in the principal amount of Notes remaining to be sold or similar changes or (ii) setting forth or incorporating by reference financial statements or other information as of and for any fiscal quarter, unless, in the case of clause (ii) above, in the reasonable judgment of the Agents or counsel for the Agents, such financial statements or other information are of such a nature that an opinion of counsel should be furnished), the Company shall, concurrently with such amendment, supplement or filing, furnish the Agent and its counsel with written opinions of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., 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);
(q) 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, the Company shall cause Ernst & Young LLP to furnish the Agents, concurrently with such amendment, supplement or filing, a letter, addressed to the Agents and dated the date of delivery of such letter, in form and substance reasonably satisfactory to the Agent, 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; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, Ernst & Young LLP 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, in which event such letter shall also cover such other information; and
(vir) Between the date on which any additional information of a public nature concerning Agent agrees to purchase Notes from the Company (as principal for resale and any future subsidiary) or its businesses which the Representative may request. During such 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(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 delivery of such quantities as the Representative may request.
(k) On or before the effective date of the Registration StatementNotes, the Company shall provide the Representative with true original copies of duly executedwill not offer or sell, 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 enter into shares of Common Stock agrees that it or he or she will not, directly or indirectly, issue, offer any agreement 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 a registration statement 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) relating to any of its executive officers or directors or to any holder of 5% or more of the Common Stock; debt securities (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 herebysuch Notes), other than trade releases issued in the ordinary course of borrowings under the Company's business consistent with past practices with respect to the Company's operations.
(u) For a period equal to the lesser revolving credit agreements and lines of (i) five (5) years from the date hereof, and (ii) the sale to the public of the Representative's Securitiescredit, the Company will not take private placement of securities and issuances of its commercial paper, or publicly disclose the intention to make any action such offer, sale, pledge or actions which may prevent disposition or disqualify the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act of the Representative's Securitiesfiling.
(v) For a period of five (5) years after the effecti
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 as 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 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 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 is reasonably practicable 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 Exchange Act before termination of the offering of the 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 reasonably object in writing within a reasonable time 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 Company will advise the Representative and confirm the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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 any state securities commission 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 fifth business day 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 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 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 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 is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, which in the opinion judgment of counsel for the Company or Underwriters' Counsel, the Prospectus, reasonable judgment of the Representatives the Prospectus or 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 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.
(gc) As soon as practicableThe Company will deliver to the Representatives, but in any event not later than forty-five (45) days after at or before the end First Closing Date, signed copies of the 12-month period beginning 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 day after the end date of the fiscal quarter 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 Company during which 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 occurs shall be borne by the Underwriters required to deliver such prospectus.
(ninety (90d) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the The Company shall will make generally available to its security holdersstockholders as soon as practicable, in but not later than fifteen (15) months after the manner specified in Rule 158(b) effective date of the Rules and Regulations, and to the RepresentativeRegistration Statement, an earnings statement which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 Securities Act, covering a period of at least twelve (12) consecutive months beginning after the "effective date date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(he) 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 in the United States 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 to service of process in any such jurisdiction where it is not now so subject. 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 cooperation of the Representatives, use its best efforts to obtain the withdrawal thereof.
(f) 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 five (5) 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 reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income report of the Company for each quarter in containing 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 close of such fiscal year, together with year and statements of operationsincome, stockholders' equity, equity and cash flows for the year then ended and the opinion thereon of the Company for such fiscal yearCompany's independent public accountants and will deliver to the Representatives, accompanied by a copy of the certificate thereon of independent certified public accountants;
(iiii) as soon as they are available, copies of all any other reports or communication (financial or other) mailed which the Company shall publish or otherwise make available to stockholders;
any of its stockholders as such and (ivii) as soon as they are available, copies of all any reports and financial statements furnished to or filed with the Commission, or the NASD or any national 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
(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 seven-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(iessubsidiaries are consolidated in reports furnished to its stockholders generally. Similar reports 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.
(g) are consolidatedThe Company has received approval for listing the Stock, subject to official notice of issuance, on the Nasdaq National Market.
(h) The Company will maintain a transfer agent and will be accompanied a registrar (if required by similar financial statements its jurisdiction of incorporation) for any significant subsidiary which is not so consolidatedits Common Stock.
(i) The Company will maintain a transfer agent ("Transfer Agent") andnot offer, 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, assign, transfer, encumber, contract to sell, grant an option for the sale or to purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, into or exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares Common Stock during the 180 days following the date of the Prospectus, other than the Company's sale of Common Stock (either pursuant to Rule 144 of hereunder and 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 Company's issuance of Common Stock upon the exercise of warrants and of stock options which are presently outstanding and described in the Prospectus or any options, rights or warrants with respect pursuant to any shares of Common Stock. On or before employee benefit plans described in 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 ledgersProspectus.
(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.
(mj) The Company shall will apply the net proceeds from the sale of the Securities Stock as set forth in the manner, and subject to the conditions, set forth description 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.
(nk) The Company shall timely file will supply you with copies of all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant correspondence to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulationsfrom, and all such reportsdocuments issued to and by, forms and documents filed will comply as to form and substance the Commission in connection with the applicable requirements registration of the Stock under the Securities Act, the Exchange Act, and the Rules and Regulations.
(ol) The Prior to the Closing Dates the Company shall will furnish to the Representative you, as early soon as practicable prior to each they have been prepared, copies 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 any unaudited interim consolidated financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior and its subsidiaries for any periods subsequent to the date of periods covered by the financial statements appearing in the Registration Statement) which have been read by Statement and the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereofProspectus.
(pm) 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 Prior to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, Dates 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 will issue 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 communications to the general public directly or indirectly and will hold any no press conference with respect to the Company or any of its activities subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, 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 operationsStock, without your prior written consent.
(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 1 contract
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, Statement has become effective (if not effective as amended, becomes effective, if of 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 this Agreement) and when 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 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 threatened initiation, or the threatening, ) 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 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 anytime 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 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(c) of the Act before the close of business on the first business day immediately following the date of this Agreement. 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 of this Agreement.
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 (A) 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 (B) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review same.
d. Prior to the Commission or any state securities commission shall enter a stop order or suspend such qualification at any timeexecution and delivery of this 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 or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(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 e. 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 fifth 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 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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) of this Agreement, 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 and to each dealer 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 which would subject it to general 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 or supplement as soon as available and jurisdiction. In the event that the qualification of the Shares in such quantities as any jurisdiction is suspended, the Underwriters may requestCompany shall so advise you promptly in writing.
(g) As soon as practicableg. The Company will make generally available to its security holders a consolidated earnings statement, but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 158 under the Act, covering a and will advise you in writing when such statement has been made so available.
h. During the period of at least twelve (12) consecutive months after ending three years from the effective date of the Registration Statement.
(h) During a period of five (5) years after the date hereofthis Agreement, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD National Association of Securities Dealers, Inc. (the "NASD") or The Nasdaq Stock Market's National Market ("Nasdaq") or any securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature 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 future subsidiaryamendments to previously filed documents, required to be filed by it pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
i. If this Agreement shall terminate or shall be terminated after execution pursuant to any provision of this Agreement (except pursuant to a termination under Section 11 of this Agreement) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts part of the Company to perform any agreement in this Agreement or to comply with any of the terms or provisions of this Agreement or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you and its subsidiary(iesthe other Underwriters for all out-of- pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters) are consolidated, and will be accompanied reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(i) j. The Company will maintain a transfer agent ("Transfer Agent") and, if necessary apply the net proceeds from the sale of the Shares to be sold by it under this Agreement in accordance in all material respects with the statements under the jurisdiction caption "Use of incorporation of Proceeds" in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(j) The k. If Rule 430A under the Act is employed, the Company will furnish timely file the Prospectus pursuant to Rule 424(b) under the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies Act.
l. For a period 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 90 days after the effective date of the Registration StatementProspectus first filed pursuant to Rule 424(b) under the Act, 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 Statementwithout your prior written consent, 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 offer or purchase of, assign, transfer, pledge, hypothecate contract to sell or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either collectively, "Company Securities") or any rights to purchase Company Securities, except to the Underwriters pursuant to Rule 144 this Agreement and except for grants of options pursuant to the Company's stock option plans in effect as 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 this Agreement, and except for the Registration Statement, the Company shall not, without the prior written consent issuance 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 in exchange for shares of Common Stock. On common stock of Pharmaceutical Buyers, Inc., pursuant to contracted obligations existing on the date of this Agreement.
m. Prior to the Closing Date or before the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(l) Neither n. The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
o. The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, indirectly take any action designed todesigned, or which might in the future 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 securities of the CompanyShares.
(m) The p. If at any time during the 90-day period after the first date that any of the Shares are released by you for sale to the public, any rumor, publication, or event relating to or affecting the Company shall apply the net proceeds from the sale occur as a result 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 your opinion the market price 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 (including the Shares) has been or is likely to be quoted on Amex 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 you concerning the advisability and substance of, and, if appropriate, disseminate, a press release or other public statement responding to or commenting on such rumor, publication, or event.
q. 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 (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 arrangementsthis Agreement.
(t) Until the completion r. The Company will timely file with Nasdaq all documents and notices required by Nasdaq of the distribution of the Securities, the Company shall not, without the prior written consent of the Representative and Underwriters' Counsel, issue, directly companies that have 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 will issue securities that are traded in the ordinary course of the Company's business consistent with past practices with respect to the Company's operationsover-the-counter market and quotations for which are reported by Nasdaq.
(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 1 contract
Sources: Underwriting Agreement (D & K Healthcare Resources 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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 shall issue any state securities commission 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 second 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 fifth 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 Commission, which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effectiveconsent shall not be unreasonably withheld, whether delayed 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 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 objectconditioned.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating to the time the Registration Statement becomes effectiveCommon Stock that would constitute an Issuer Free Writing Prospectus without your prior consent, 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 which consent shall not be required to qualify as a foreign corporation unreasonably withheld, delayed 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 qualificationconditioned.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 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(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.
(gi) As soon 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 practicable, but 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 not later than fortythat 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-five issuer transactions under (45or obtain exemptions from the application of) days 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 end date hereof, if necessary.
(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 12Act), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the NASDAQ Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature 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.
(and l) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof, other than clauses (iv) or its businesses which (v)) or if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe 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) are consolidated, reasonably incurred by you in connection herewith (which fees and will be accompanied by similar financial statements for any significant subsidiary which is expenses shall not so consolidatedexceed $200,000).
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jo) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies 180th day after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 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) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lq) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(r) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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) yearsShares.
(s) The Company hereby agrees will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that it have or 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 securities that is less than the greater of the public offering price of the Shares set forth herein and the fair market value are traded 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 arrangementsNASDAQ.
(t) Until the completion of the distribution of the Securities, the The Company shall notengage and maintain, without at its expense, a transfer agent and, if necessary under the prior written consent jurisdiction 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 incorporation or the offering contemplated herebyrules of any national securities exchange on which the Common Stock will be listed, other than trade releases issued in a registrar (which, if permitted by applicable laws and rules may be the ordinary course of same entity as 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 formtransfer agent) for the registration under the Act of the Representative's SecuritiesCommon Stock.
(v) For a period of five (5) years after the effecti
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 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 as promptly as practicable 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 Exchange Act before termination of the offering of the 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 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 Regulations or the 1934 Act and the rules and regulations of the Commission thereunder, as the Company is advised or obtains knowledge thereof, the applicable. The Company will advise the Representative and confirm the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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 any state securities commission 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 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 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 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.
(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 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 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 1933 Act.
(d) The Company will deliver to the Representatives, at or before the First Closing Date, signed copies of the Registration Statement and prepare all amendments thereto (including all financial statements and file 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 thereafter from time to time during the period when delivery of a prospectus relating to the Securities 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 prospectus supplement and the Prospectus and any amendments or supplements thereto furnished to the Representatives will be identical to the electronically transmitted copies thereof filed with the Commission an appropriate amendment or supplement in accordance with Section 10 of pursuant to ▇▇▇▇▇, except to the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the extent permitted by Regulation S-T.
(e) The Company will furnish make generally available to the Underwriters copies of such amendment or supplement its security holders 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) 60 days after the end close 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 Representativecovered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 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" (12as defined in said Rule 158) consecutive months after the effective date of the Registration Statement.
(hf) 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 reasonably 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 such statements and reports as are or may be required of it as the issuer of the Securities to continue such qualifications in effect for so long a period as the Representatives may reasonably 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 five (5) years after from the date hereof, the Company will furnish deliver to the Representatives copies of each annual report of the Company and each other report furnished by the Company to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, shareholders; and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholdersRepresentatives, 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 any other reports (financial or other) mailed which the Company shall publish or otherwise make available to stockholders;
(iv) any of its security holders as such and, as soon as they are available, copies of all any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;.
(vh) every press release and every material news item or article of interest The Company will use its best efforts to effect the financial community in respect listing of the Company, or its affairs, which was released or prepared by or Securities on behalf of the Company; and
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedNYSE.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under use the jurisdiction of incorporation net proceeds received by it from the sale of the Company, a Registrar (which may be Securities sold by it in the same entity as manner specified in the Transfer Agent) for its Common StockProspectus Supplement under "Use of Proceeds".
(j) The Immediately following the execution of this Agreement, the Company will furnish to prepare a prospectus supplement, dated the Representative date hereof (the "Prospectus Supplement"), containing the public offering price of the Securities, the underwriting discounts and commissions, the plan of distribution of the Securities and such other information as may be required by the 1933 Act or on the Representative's order, without charge, at such place Rules and Regulations or as the Representative may designateRepresentatives 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 each Preliminary Prospectussuch Prospectus Supplement and, if required by Rule 424(b) or requested by the Representatives, 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 Base 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 During the effective period of 30 days from the date of the Registration Statementthis Agreement, 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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, directly or indirectly, (i) offer, issue, pledge, sell, contract or offer to sell, issuesell any option or contract to purchase, transferpurchase any option or contract to sell, assigngrant any option, pledgeright or warrant to purchase, distributelend or otherwise transfer or dispose of any shares of Series A Preferred Stock (other than the Securities to be sold to the Underwriters pursuant to this Agreement) or other shares of the Company's Preferred Stock, any shares of any other class or series of capital stock of the Company which is substantially similar to the Series A Preferred Stock or any depositary shares or depositary receipts representing or evidencing any of the foregoing, or otherwise dispose ofany securities convertible into or exercisable or exchangeable for Series A Preferred Stock, any other Preferred Stock of the Company or any such substantially similar capital stock or depositary shares or depositary receipts, or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement, transaction or arrangement that transfers to another, in whole or in part, directly or indirectly, any of the economic consequences of ownership of Series A Preferred Stock, any other Preferred Stock of the Company, any shares of Common any other class or series of capital stock of the Company which is substantially similar to the Series A Preferred Stock or any optionsdepositary shares or depositary receipts representing or evidencing any of the foregoing, rights whether any such transaction described in clause (i) or warrants with respect (ii) above is to any shares be settled by delivery of Common Series A Preferred Stock. On , other securities, in cash 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 ledgersotherwise.
(l) Neither The Company will use its best efforts to continue to meet the Company, requirements to qualify as a "real estate investment trust" under 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 CompanyCode.
(m) The Company shall apply In accordance with the net proceeds from the sale provisions of the Securities in the mannerCuba Act, if applicable, and subject without limitation to the conditions, set forth under "Use provisions 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 Section 6 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 indemnify each Underwriter against any action and all losses, claims, damages, liabilities and expenses (including attorneys' fees) arising out of or actions which may prevent or disqualify based upon any violation by the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act Company of the Representative's SecuritiesCuba Act.
(v) For a period of five (5) years after the effecti
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 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 Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised become effective, and furnished with a copy, or to which the Representative shall have objected 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 (i) when of the time and date of any filing of any post-effective Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when 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 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(j) 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 shall issue any state securities commission 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 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 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) As soon 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 practicableyou 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 (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 so long as required for the distribution of Shares, but in any no event not later than forty-five (45) days beyond one year after the end date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of the 12Rule 158), which need not be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hl) During [Reserved].
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a period termination under Section 11 or 12 hereof) or if this Agreement shall be terminated by the Underwriters because of five (5) years after any inability, failure or refusal on the date hereofpart 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 will furnish agrees to its stockholders, as soon as practicable, annual reports reimburse you and the other Underwriters for all out-of-pocket expenses (including financial statements audited travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by independent public accountantsyou) and unaudited quarterly reports of earnings, 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 reasonably incurred by you 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedconnection herewith.
(in) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jo) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies 90th day after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into 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, distributeStock, or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock. On , (2) enter into any swap or before 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 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”). 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, 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, and (C) the conversion or exchange of options, warrants or other securities of the Company shall deliver instructions to convertible into or exchangeable for Common Stock of the Transfer Agent authorizing it to place appropriate legends Company outstanding as of the date of this Agreement. Notwithstanding the foregoing, in the event the Company loses its status as an "emerging growth company", or Section 105(d) of the Jumpstart Our Business Startups Act of 2012 no longer prohibits the Commission or FINRA from adopting or maintaining rules that impose quiet periods on emerging growth companies, if (1) during the certificates representing the securities subject to last 17 days of the Lock-up Agreements and Up Period, the Company issues a release concerning earnings or material news or a material event relating to place appropriate stop transfer orders 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 Company's ledgerslast 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.
(lp) Neither Prior to the CompanyClosing Date or the Additional Closing Date, as the case may be, at the reasonable request of the Underwriters, the SubsidiaryCompany will furnish to you, nor as promptly as possible, copies of any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning unaudited interim consolidated financial statements of the Rules Company and Regulationsits subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will takecomply 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 todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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) yearsShares.
(s) The Company hereby agrees will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that it have or 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 securities that is less than the greater of the public offering price of the Shares set forth herein and the fair market value are traded 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 arrangementsNASDAQ.
(t) Until the completion of the distribution of the Securities, the The Company shall notengage and maintain, without at its expense, a transfer agent and, if necessary under the prior written consent jurisdiction 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 incorporation or the offering contemplated herebyrules of any national securities exchange on which the Common Stock is listed, other than trade releases issued in a registrar (which, if permitted by applicable laws and rules may be the ordinary course of same entity as 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 formtransfer agent) for the registration under the Act of the Representative's SecuritiesCommon Stock.
(v) For a period of five (5) years after the effecti
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as followsseveral International Managers:
(a) The Company shall use its best efforts To prepare the Prospectus in a form approved, subject to cause the requirements of applicable law and regulation, by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement and any amendments thereto or Prospectus which shall be reasonably disapproved by you promptly after reasonable notice thereof; to become effective as advise you, promptly as practicable and will not at any timeafter it receives notice thereof, whether before or after the effective date of the Registration Statement, file time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the amended Prospectus has been filed in accordance and to furnish you with said Rule 430A and when any post-effective amendment copies thereof; to the Registration Statement becomes effective; (ii) advise you, promptly after it receives notice thereof, 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 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 Stock for offering or sale in any jurisdiction or jurisdiction, of the initiation, initiation or the threatening, threatening of any proceeding for that any such purpose; (iv) of the receipt of any comments from the Commission; and (v) , or of any request by the Commission for any amendment to the amending or supplementing of the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If ; and, in the Commission or event of the issuance of any state securities commission shall enter a stop order or suspend of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification at any timequalification, the Company will make every effort promptly to 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 Promptly from time to the Representative) or transmit the Prospectus by a means time to take such action as you may 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 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 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 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, request to qualify the Securities Stock for offering and sale under the securities laws of such U.S. jurisdictions as the Representative you may designate request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distributiondistribution of the Stock, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general or limited consent to service of process in any jurisdiction;
(c) Prior to 12:00 noon., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the International Managers with copies of the Prospectus in New York City in 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 quantities as are or you may reasonably be required by request, and, if the laws delivery 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 prior to the Securities is required to be delivered under expiration of nine months after the Act, time of issue of the Prospectus in connection with the offering or sale of the Stock and if at such time any event shall have occurred as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, Prospectus as then amended or supplemented, includes supplemented 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 or, if for any other reason it is shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act, the Company will to notify the Representative promptly you and upon your request to prepare and file furnish without charge to each International Managers and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any International Managers is required to deliver a prospectus in connection with sales of any of the Commission Stock at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such International Managers, to prepare and deliver to such International Managers as many copies as you may request of an appropriate amendment amended or supplement in accordance supplemented Prospectus complying with Section 10 10(a)(3) 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.;
(gd) As soon as practicable, but in any event not later than forty-five (45) days after During the end of the 12-month period beginning on the day date hereof and continuing to and including the date 90 days after the end date of the fiscal quarter Prospectus, not to (A) offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any shares of Stock or any securities of the Company that are substantially similar to the Stock, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than (i) as described in the Prospectus, (ii) as may be issued in connection with the acquisitions of Apollo, (iii) as may be issued in connection with the acquisitions other than Apollo provided that the persons to whom such securities are issued agree not to publicly resell such securities during which such 90-day period, and (iv) pursuant to employee and/or director stock option plans existing on the effective date of this agreement, or upon the Registration Statement occurs (ninety (90) days in the event that the end conversion or exchange of such fiscal quarter is the end convertible or exchangeable securities outstanding as of the Company's fiscal yeardate hereof or granted pursuant to such existing employee or director stock option plans), the Company shall make generally available to its security holders, in the manner specified in Rule 158(bor (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 five (5) years after the date hereof, waive any provision in the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to Apollo Acquisition Agreement restricting the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income transfer of the Company for each quarter in the form furnished securities 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
(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 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(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 Statementissued thereunder, in each either 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 hereofBear, 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 acting together, which shalt not less than five (5) years.be unreasonably withheld;
(se) The To use its best efforts to list for quotation the Stock on the New York Stock Exchange ("NYSE"); and
(f) If the Company hereby agrees that it will notelects to rely upon Rule 462(b), for the Company shall file a period of twelve (12Rule 462(b) months from Registration Statement with the effective date of the Registration StatementCommission in compliance with Rule 462(b) by 10:00 P.M., adoptWashington, propose to adopt or otherwise permit to exist any employeeD.C. time, 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 rightsthis Agreement, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities, and the Company shall not, without at the prior written consent time of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect filing either pay to the Company or its activities or Commission 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) filing fee for the registration Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act of the Representative's SecuritiesAct.
(v) For a period of five (5) years after the effecti
Appears in 1 contract
Sources: International Underwriting Agreement (SFX Entertainment 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 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 Exchange Act before termination of the offering of the 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 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, 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 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 any state securities commission authority 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 fifth 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 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 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; 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 Securities or the Representative's 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 forty-five (45) 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) 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(ies) 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 ("Transfer Agent") 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, which for a period of twelve (12) 24 months from the effective date of the Registration Statement, each the officers and directors of the Company's stockholders , holders of all shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees Stock, agree that it or he or she will not, not directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate 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 Representatives Representative (collectively, the "Lock-up Agreements"). During the 12 24 month period commencing on 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, the Subsidiary, nor any of their respective 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 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 letters its letter to be furnished pursuant to Sections 6(jSECTION 6(i) hereof.
(p) The Company shall cause the Common Stock to be quoted on Amex and, NNM and for a period of five seven (57) years from the date hereof, use its best efforts to maintain the Amex 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, 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) 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) 30 days after 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 five seven (57) years.
(s) The Company hereby agrees that it will not, not for a period of twelve twenty-four (1224) 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 sale of any option, warrant shares of Common Stock or other contract right securities of the Company (xi) in an amount greater than an aggregate of 312,500 shares, (ii) at an exercise or sale price that is 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 or sale, (yiii) to any direct or indirect beneficial holder on the date hereof of its executive officers or directors or to any holder of 5more than 10% or more of the issued and outstanding shares of Common Stock; , (iiiv) 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 (iiivi) permitting the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the SecuritiesShares, the Company shall not, 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 effectia
Appears in 1 contract
Sources: Underwriting Agreement (Leading Edge Packaging Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each the several Underwriters participating in the offering of the Underwriters as followsUnderwritten Securities that:
(a) The Company shall use its best efforts to cause Immediately following the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date execution of the Registration Statementapplicable Terms Agreement, file any amendment to the Registration Statement or supplement to Company will prepare a Prospectus Supplement setting forth the principal amount of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or file the Indenture, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any document under delayed delivery arrangements, and such other information as you and the Act or Exchange Act before termination of Company deem appropriate in connection with the offering of the Shares by Underwritten Securities; and the Underwriters Company will promptly transmit copies of which the Representative shall not previously have been advised and furnished with a copy, or Prospectus Supplement to which the Representative shall have objected or which is not in compliance with Commission for filing pursuant to Rule 424(b) of the Act, the Exchange 1933 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 in writing (i) when the Registration Statement, as amended, becomes effective, 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) you promptly 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 any proceedings for that purpose; (iii) , 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 you promptly of the issuance by transmittal to the Commission or by any state securities commission for filing of any proceedings for Prospectus Supplement or other supplement or amendment to the suspension of Prospectus or any document to be filed pursuant to 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) 1▇▇▇ ▇▇▇. The Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information.
(c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement.
(d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If Prospectus, whether pursuant to the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time1933 Act, 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) 1934 Act 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 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 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)otherwise, and will furnish the Representative you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may befiling, and will not file any such prospectus amendment or supplement or other documents in a form to which you or counsel for the Representative Underwriters shall reasonably object in writing or ▇▇▇▇▇▇which is not in material compliance with the 1933 Act, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall objectthe 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, as applicable.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will deliver to the time each Underwriter a signed copy of the Registration Statement becomes effective, as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to qualify the Securities for offering and sale Item 12 of Form S-3 under the securities laws 1▇▇▇ ▇▇▇) and will also deliver to such Underwriter a conformed copy of such jurisdictions the Registration Statement as the Representative may designate to permit the continuance originally filed and of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such each amendment thereto (including 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 incorporated by the laws of such jurisdiction to continue such qualificationreference but without exhibits).
(f) During The Company will furnish to each Underwriter, from time to time during the time period when a prospectus the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the 1933 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 1934 Act or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. 1934 Act Regulations.
(g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the Act, 1933 Act or the 1934 Act any event shall have occurred relating to or affecting the Company 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify the Representative promptly you thereof and prepare and file with the Commission an appropriate amendment will amend or supplement in accordance with Section 10 of the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, each the 1934 Act or otherwise, as may be necessary to correct such amendment untrue statement or supplement omission or to be satisfactory to Underwriters' Counselmake the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement supplement.
(h) The Company will cooperate with the Underwriters to enable the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as soon you may designate and at the request of the Underwriters will make such applications and furnish such information as available may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, 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 quantities jurisdiction. 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 Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to continue such qualifications in effect for so long a period as the Underwriters may requestreasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified.
(gi) As With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event not no later than forty-five (45) 60 days after the end close 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 Representativecovered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with Section 11(a) of the 1933 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 months beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (12as defined in said Rule 158) consecutive months after the effective date of the Registration Statement.
(hj) The Company will furnish to its shareholders annual reports containing financial statements certified by independent registered public accounting firms and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of five (5) years after from the date hereof, the Company will furnish deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, shareholders; and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholdersyou, 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 as soon as they are available, copies of any other reports to its stockholders, a balance sheet of (financial or other) which the Company shall publish or otherwise make available to any of its security holders as at the end of the preceding fiscal year, together with statements of operations, stockholders' equitysuch, 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 any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;
(v) every press release and every material news item or article of interest to . In the financial community in respect of the Company, or its affairs, which was released or prepared by or on behalf of the Company; and
(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 seven-year period, if event 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(ies) subsidiaries are consolidated, and will be accompanied by similar consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for any all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under subsidiaries as defined in 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 request1933 Act Regulations.
(k) On or before The Company will use 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 net proceeds received by it from the effective date sale of Underwritten Securities in the Registration Statement, each manner specified in the Prospectus under “Use 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 ledgersProceeds.”
(l) Neither The Company will use its best efforts to continue to meet the Company, requirements to qualify as a REIT under the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within Code for the meaning taxable year in which sales of the Rules and Regulations) will takeUnderwritten Securities are to occur, directly or indirectly, any action designed to, or which might unless otherwise specified in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the CompanyProspectus.
(m) The Company shall apply Company, during the net proceeds from period when the sale Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Securities in Underwritten Securities, will file promptly all documents required to be filed with the mannerCommission pursuant to Section 13, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion 14 or 15 of the net proceeds will be used, directly or indirectly, to acquire any securities issued 1934 Act within the time periods prescribed by the Company1934 Act and the 1934 Act Regulations.
(n) The Company shall timely file all will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such reportsTerms Agreement), forms or other documents if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise 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 provided in the applicable requirements under the Act, the Exchange Act, and the Rules and RegulationsTerms Agreement.
(o) The If applicable, the Company shall furnish will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to the Representative as early as practicable prior satisfy any obligations to each issue such shares upon conversion 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) hereofSecurities.
(p) The If applicable, the Company shall cause the Common Stock to be quoted on Amex and, for a period of five (5) years from the date hereof, will use its best efforts to maintain the Amex quotation of list 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 Shares issuable upon conversion 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 New York Stock Exchange 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 national exchange on which the Company's business consistent with past practices with respect to the Company's operations’s Common Shares are then listed.
(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 1 contract
Sources: Underwriting Agreement (Developers Diversified Realty Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as followsUnderwriter that:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, 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) Underwriter promptly 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 any proceedings for that purpose; (iii) , 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. With respect to the sale of the issuance by Offered Certificates, the Commission or by any state securities commission of any proceedings for Company will advise 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) Underwriter promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If , and will not at any time file any amendment to the Registration Statement or amendment of or supplement to the Prospectus which shall not previously have been submitted to the Underwriter a reasonable time prior to the proposed filing thereof or to which the Underwriter shall reasonably object in writing or which is not in compliance with the Act and the Rules and Regulations.
(b) The Company will prepare and file the Prospectus with the Commission or any state securities commission shall enter a stop order or suspend such qualification at any timepursuant to and in accordance with Rule 424. Subject to the Underwriter's compliance with its obligations pursuant to Section 5 of this Agreement, the Company shall file with the Commission under cover of Form 8-K (i) Evaluation Models-Materials and Structural Term Sheets concurrently with the filing of the Prospectus pursuant to Rule 424(b) under the Act or on such earlier date as the Underwriter may reasonably request and (ii) Collateral Term Sheets within two (2) Business Days after such Collateral Term Sheets are made available to prospective investors. Notwithstanding the foregoing, the Company shall not be obligated to file any such Evaluation Models-Materials or ABS Term Sheets that it has determined contain any material error or omission. The Company will make every effort notify the Underwriter prior to obtain promptly the lifting Company's election not to file Evaluation Models-Materials or ABS Term Sheets due to the Company's determination that such Evaluation Models-Materials or ABS Term Sheets contain a material error or omission. In the event of such orderany delay in the delivery by the Underwriter to the Company of the Evaluation Models-Materials or ABS Term Sheets required by Section 5(a) of this Agreement or the independent certified public accountants' letter or letters required to be delivered in accordance with Section 5(b) of this Agreement, the Company shall have the right to delay the Closing Date and to take other appropriate actions.
(c) The Company shall will prepare and file with the Commission, promptly upon the request of the Underwriter, any amendment of or supplement to the Registration Statement or the Prospectus which in the opinion of the Underwriter may be necessary to enable the Underwriter to continue the distribution of the Offered Certificates and will use its best efforts to cause the same to become effective (in form and substance satisfactory to the Representativeif applicable) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1as promptly as possible.
(d) (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 fifth 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 , a prospectus relating 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 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 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 Offered Certificates 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 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 an in effect would include any 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 or supplement the Prospectus to comply with the Act, the Company will promptly notify the Representative promptly Underwriter thereof and will prepare and file with an amended or supplemented prospectus which will correct such statement or omission or effect such compliance; and, in case the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement Underwriter is required to be satisfactory to Underwriters' Counsel, and the Company will furnish deliver a prospectus relating to the Underwriters copies of such amendment Offered Certificates nine months 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 more 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 Prospectus, 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 upon 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 request 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 Underwriter and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all expense of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary 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 permit compliance with the Commission providing for the registration under the Exchange Act requirements 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 effectiSection 10(a)(3)
Appears in 1 contract
Sources: Underwriting Agreement (WaMu Asset Acceptance 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 the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, 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 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 Preliminary Prospectus or the Prospectus and 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. If , (iv) of the issuance by the Commission or of any state securities commission shall enter a stop order suspending the effectiveness of the Registration Statement or suspend of the suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such qualification purposes and (v) within the 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 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 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 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 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 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 Act, the Company will notify the Representative promptly and prepare and file with Securities Act or any other law. If at any time the Commission an appropriate amendment or supplement in accordance with Section 10 of shall issue any stop order suspending 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectiveness of the Registration Statement, the Company shall will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Representative Underwriters with true original copies of duly executedthe form of Prospectus, legally binding in such number as the Underwriters may reasonably request, and enforceable agreements pursuant to whichfile with the Commission such Prospectus in accordance with 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, for a period of twelve (12) months from the effective date “subsidiaries” shall mean all of the Registration Statement, each of the Company's stockholders wholly-owned 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 partially-owned direct 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 indirect subsidiaries 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 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 Initial Purchasers as follows:
(a) The Company shall use its best efforts to cause during the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or period ending 90 days after the effective date hereof to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, 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 happening of any stop order or of the initiation, or the threatening, of event which makes 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 any state securities commission 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 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 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 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 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 made in the Offering Memorandum untrue or omits that requires the making of any additions to state any material fact required or changes in the Offering Memorandum (as amended or supplemented from time to be stated therein or necessary time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; to advise the Initial Purchasers promptly of any order preventing or if it is necessary at any time to amend suspending 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 use of the ActPreliminary Offering Memorandum or the Offering Memorandum, each of the suspension of the qualification of the Debentures for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such amendment purpose; and to use its reasonable best efforts to prevent the issuance of any such order preventing or supplement suspending the use of the Preliminary Offering Memorandum or of the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to be satisfactory use its reasonable best efforts to Underwriters' Counselobtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to the Initial Purchasers and counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Company will Offering Memorandum (and of any amendments or supplements thereto) as may be reasonably requested; to 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 Initial Purchasers 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 hereof 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
(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 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(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 ' report included 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 Offering Memorandum signed 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 effectiaccountants rendering such
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 (or, at your discretion, our 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, or, in your discretion, counsel to the Company, for the registration or qualifi cation 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.
(c) The Company will furnish to you, without charge, four manually-signed copies, and such reasonable number of conformed 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 as promptly as practicable under the 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, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 amendment 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, supplement unless the Company shall not be required have first delivered copies of such amendment or supplement to qualify as a foreign corporation or file a general or limited you and your counsel and you and your counsel shall have given your 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 filing of such jurisdiction to continue amendment or supplement. Any such qualificationamendment or supple ment shall comply with the Act.
(f) During From and after the Effective Date, the Company will deliver to you, without charge, as many copies of the Prospectus or any amendment or supplement thereto as you may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by you and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for such period of time when a prospectus thereafter as the 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 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 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 Pro spectus 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 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) As soon as practicableThe Company will promptly pay all expenses in connection with (1) the preparation, but in any event not later than forty-five printing, filing, distribution and mailing (45including, without limitation, express delivery service) 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.
, each preliminary prospectus, the Prospectus, and the preliminary and final forms of Blue Sky memoranda (hif any); (2) During 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 period of five registrar or transfer agent for the Common Stock; (5) years after the date hereofprinting, filing, distribution and mailing (including, without limitation, express delivery service) of this Agreement, the Company will furnish to its stockholdersAgreement Among Underwriters, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earningsif any, and will deliver to the Representative:
Selected Dealers Agreement; (i6) concurrently with furnishing such quarterly reports to its stockholders, statements of income copies 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 CommissionRegistration Statement, 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
(vi) any additional information of a public nature concerning the Company (Prospectus and any future subsidiary) or its businesses which the Representative may request. During such 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(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 Prospectuspreliminary prospectus, and all amendments and supplements thereto, including any prospectus prepared after as may be requested for use in connection with the effective date offering and sale of the Registration StatementShares 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 Regulatory, in each case as soon as available Inc. (the "NASDR"); and in such quantities as (8) the Representative may requestquotation of the Shares on NASDR's Automated Quotation System ("NASDAQ").
(kh) On or before the effective date of the Registration StatementClosing Date, the Company shall provide sell to you the Representative with true original copies Underwriters' Warrant to purchase 100,000 Shares for an aggregate purchase price of duly executed, legally binding $10. The Underwriters' Warrant shall be divided between you and enforceable agreements your designees in such manner as you shall jointly direct by written instruction to the Company at least two business days prior to the Closing Date.
(i) If this Agreement shall be terminated pursuant to whichany of the provisions hereof (otherwise than by notice given by you pursuant to Section 8 hereof) 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; provided, however, the Company shall not be so obligated to reimburse you if this Agreement is terminated by reason of a failure to satisfy the condition set forth in Section 7(k) hereinbelow by reason of your unwillingness to modify the underwriting arrangements pertaining to sale of the Shares and/or the participation by you in the sale of the Shares, as may be requested by the NASDR.
(j) For a period of twelve ninety (1290) months from days after the effective date commencement of the Registration Statement, each public offering 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 Shares by you, without your prior written consent, the Company will not, directly or indirectlynot offer, issue, offer sell, contract to sell, sell, grant an 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 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 securities of Common 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, or for stock options granted to employees pursuant to the Company's Omnibus Stock or any options, rights or warrants with respect Plan attached as an exhibit to any shares of Common Stock. the Registration Statement.
(k) On or before prior to the Closing Date, the Company shall deliver instructions obtain 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 Transfer Agent authorizing it Effective Date (or any longer period required by NASDAQ or any jurisdiction in which the offer and sale of the Shares is to place appropriate legends on be registered or qualified), he or she will not offer for sale, sell, contract to sell, assign, pledge, transfer, grant any option for the certificates representing sale of, or otherwise dispose of, directly or indirect ly, any securities of the securities subject to Company (including without limitation any shares of Common Stock), owned by him or her as of the Lock-Closing Date, whether upon exercise of warrants, stock options or otherwise, without WS's prior written consent (the "Lock- up Agreements and to place appropriate stop transfer orders on the Company's ledgersLetter").
(l) Neither The Company has reserved and shall continue to reserve and keep available the Company, the Subsidiary, nor any maximum number of their respective officers, directors, stockholders, nor any shares of their respective affiliates (within the meaning its authorized but unissued Common Stock and other securities for issuance upon exercise 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 CompanyUnderwriters' Warrant.
(m) The For a period of five years after the date of this Agreement, the Company shall:
(1) retain ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another nationally recognized firm of independent public accountants, as its auditors, and at its own expense, shall apply cause such indepen dent certified public accountants to review the net proceeds from the sale Company's financial statements for each of the Securities in first three fiscal quarters of each fiscal year prior to the mannerannouncement of quarterly financial information, the filing of the Company's Form 10-QSB quarterly reports and the mailing of quarterly financial information to its stockholders;
(2) cause the Company's Board of Directors to meet not less frequently than quarterly, upon proper notice, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion cause an agenda and minutes of the net proceeds will preceding meeting to be useddistributed to directors prior to each such meeting;
(3) distribute to its security holders, directly or indirectlywithin 120 days after the end of each fiscal year, to acquire any securities issued 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 CompanyCommission 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) The For a period of five years after the date of this Agreement, the Company shall timely file all 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 stockholders' 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 reportsfiscal year and for the twelve months then ended, forms accompanied by a copy of the certificate or other documents report thereon of such independent certified public accountants;
(2) (x) for so long as may be required (includingthe Company is a reporting company under any of Sections 12(b), but not limited to, a Form SR as may be required pursuant to Rule 463 under 12(g) or 15(d) of the Act) from time to time, under 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, and or (y) at such times as the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements Company is not a reporting company under the Act, 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 for each such fiscal quarter and the Rules comparable period of the preceding year, which statements need not be audited;
(3) as soon as practicable after they have first been distributed to stockholders of the Company, copies of each annual and Regulationsinterim financial or other report or communica tion sent by the Company to its stockholders (except to the extent duplicative of information furnished pursuant to any other clause of this Section 4(n));
(4) as soon as practicable following release or other dissemination, copies of every press release and every material news item and article in respect of the Company or its affairs released or otherwise disseminated by the Company;
(5) promptly following receipt thereof, copies of the Company's daily transfer sheets prepared by the Company's transfer agent and a list of stockholders; and
(6) such additional documents and information with respect to the Company and its affairs, if any, as you may from time to time reasonably request.
(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[Intentionally deleted].
(p) The On or prior to the Effective Date, the Company shall cause will have accomplished the Common Stock quotation of the Shares on the NASDAQ SmallCap Market, subject only to notice of issuance and the registra tion of such securities under the Exchange Act. For a period of five years from the date of this Agreement, the Company agrees, at its sole cost and expense, to take all necessary and appropriate action such that its securities continue to be quoted on Amex andNASDAQ, for a period provided that the Company otherwise complies with the prevailing requirements of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock to the extent outstandingNASDAQ.
(q) For a period of five (5) two 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 Securitiesthis Agreement, the Company will not take any action seek to amend its certificate of incorporation 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 file a period of five (5) years after the effecticertificate o
Appears in 1 contract
Sources: Underwriting Agreement (Galvestons Steakhouse Corp)
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 (i) cause the Registration Statement and any amendments thereto to become effective 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 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 supplement to any Preliminary Prospectus, the Time of Sale Information or the Prospectus or file any document under and the Act or Exchange Act before termination of the offering of the 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 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, 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) prepare the Final Prospectus Supplement in a form approved by the Representatives (which approval shall not be unreasonably withheld) containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430B or 430C under the Act and to file such Final Prospectus Supplement pursuant to Rule 424(b) under the Act not later than the second business (2nd) day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required under the Act; (iii) advise the Representatives promptly after it receives notice thereof 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, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus or for additional information, (iv) advise the Representatives promptly after it receives notice thereof of the issuance by the Commission of any stop or other order preventing the use of or of the initiation, or the threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, the Preliminary Time of Sale Information, the Prospectus or the Prospectus, any Issuer Free Writing 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; and such purposes, (v) of any request prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representatives (which approval shall not be unreasonably withheld) and file such Rule 462(b) Registration Statement with the Commission for any amendment by 10:00 P.M., New York time, on the date hereof, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee and (vi) within the period of time referred to in Section 5(h) hereof, to notify the Underwriters of any amendment or supplement event that comes to the attention of the Company that makes any statement made in the Registration Statement, the Preliminary Prospectus, the Time of Sale Information, the Prospectus or for additional information. If the Commission or any state securities commission 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 Issuer Free Writing Prospectus (as then amended or supplemented) untrue in form and substance satisfactory to the Representative) any material respect 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 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 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 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 event 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 is required to be delivered under the Act, any event shall have has occurred as a result of whichwhich it is necessary, in the opinion of counsel for the Company Underwriters, to amend or Underwriters' Counselsupplement the Registration Statement, the Preliminary Prospectus, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus (as then amended or supplemented) in order to make the Registration Statement, the Preliminary Prospectus, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or if for any other reason it shall be necessary to amend or supplement the Registration Statement, the Preliminary Prospectus, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus (as then amended or supplemented) in order to comply with applicable laws, rules or regulations and (subject to Section 5(c) hereof) forthwith amend or supplement such Registration Statement, Preliminary Prospectus, Time of Sale Information, Prospectus or Issuer Free Writing Prospectus at its own expense so that, as so amended or supplemented, such Registration Statement, Preliminary Prospectus, Time of Sale Information, Prospectus or Issuer Free Writing Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading (in the case of the Prospectus, in light of the circumstances under which they were made) and will comply with all applicable laws, rules or regulations. If at any time the Commission 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, without charge, provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request.
(b) The Company will, without charge, provide to the Underwriters and to counsel to the Underwriters as many copies of each of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, as any Underwriter or its counsel may reasonably request.
(c) The Company will not amend or supplement the Registration Statement, the Preliminary Prospectus, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto of which you shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which you shall not have given your consent (which consent shall not be unreasonably withheld), other than by filing documents under the Exchange Act that are incorporated by reference therein, without your consent (which consent shall not be unreasonably withheld). The Company will promptly, upon the reasonable request of the Underwriters or counsel to the Underwriters, file with the Commission any amendments or supplements to the Registration Statement, the Preliminary Prospectus, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus that may be reasonably necessary or advisable in connection with the underwriting of the Shares by the Underwriters.
(d) The Company will, without charge, furnish a copy of any amendment or supplement to the Registration Statement, the Preliminary Prospectus, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Underwriters and obtain your consent prior to filing any of those with the Commission (which consent shall not be unreasonably withheld).
(e) The Company will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without your prior consent (which consent shall not be unreasonably withheld).
(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 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, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus, Time of Sale Information 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 forthwith notify the Representative promptly Representatives and 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 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 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 the Underwriters copies and counsel for the Underwriters in arranging for the qualification or exemption of the Shares for offer and sale under the securities or “Blue Sky” laws of such amendment or supplement as soon as available and in such quantities jurisdictions as the Underwriters may requestdesignate and will continue any such qualifications or exemptions in effect for as long as may be necessary to complete the distribution of the Shares by the Underwriters; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(gk) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(il) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under apply the jurisdiction of incorporation net proceeds from the sale of the Company, a Registrar (which may be Shares as set forth under “Use of Proceeds” in the same entity as the Transfer Agent) for its Common StockProspectus.
(jm) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 90th day after the effective date of the Registration Statement, in each case as soon as available and in such quantities as Prospectus (the Representative may request.
(k) On or before the effective date of the Registration Statement“Lock-Up Period”), 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, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber dispose of or dispose 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, exercisable into 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 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: (i) 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; (ii) shares of the Company’s Common Stock pursuant to that certain underwriting agreement of even date herewith; (iii) the Conversion Shares; (iv) Common Stock issued upon conversion of the Company’s 7.00% cumulative perpetual convertible preferred stock (the “Series A Preferred Stock. On ”)); (v) Common Stock issued upon the exercise of the Company’s $11.50 Warrants; (vi) shares of Common Stock issued under that certain stock purchase agreement, dated as of May 2, 2014, by and among the Company and Baron Growth Fund, ING Baron Growth Portfolio and LVIP Baron Growth Opportunities Fund, (vii) transactions relating to shares of Common Stock or before other securities acquired in open market transactions after the Closing Date, ; and (viii) the Company shall deliver instructions transfer of shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (a) as a bona fide gift 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 an immediate family member of the Rules and Regulationsexecutive officer or director or to a trust formed for the benefit of an immediate family member, (b) by will takeor intestate succession, directly (c) as a bona fide gift to a charity or indirectlyeducational institution, any action designed to, or which might in the future reasonably be expected (d) 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 mannerus to cover tax withholding obligations, and subject to the conditions, set forth (e) 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 10b5-1 trading plans entered into 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 theretoenter into any swap or other derivatives transaction that transfers to another, a copy in whole or in part, any of the latest available unaudited interim financial statements economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) above or this clause (2) 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 (which in no event shall be as of other than a date more than thirty Form S-8) or (304) days prior publicly disclose the intention to the date do any of the Registration Statement) which have been read by foregoing, in each case without 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 prior written consent 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 Deutsche Bank 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 Inc. and ▇▇▇▇▇'▇▇ OTC Manual ▇▇▇▇▇ & Associates on behalf of the Underwriters and the underwriters of the Shares, and to continue such inclusion for cause each executive officer and director of the Company set forth on Schedule IV hereto to furnish to Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, prior to the Initial Delivery Date, a period letter or letters, substantially in the form of not less than five Exhibit B hereto (5the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) years.
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 (s2) The prior to the expiration of the Lock-Up Period, the Company hereby agrees announces 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 effectiearn
Appears in 1 contract
Sources: Underwriting Agreement (Iridium 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 will use its best efforts to cause the Registration Statement and any amendments thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus Statement has been filed in accordance with said Rule 430A become effective and when any post-effective amendment 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 becomes effective; Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iiiv) 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, 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 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 also 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 will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall previously have been advised thereof and 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.
(d) Prior to the Commission or any state securities commission shall enter a stop order or suspend such qualification at any timeexecution and delivery of this 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 or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(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 fifth 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 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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 and required to complete the distribution of the Shares; provided that in such quantities as no event shall the Underwriters may requestCompany 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 general 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 the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(g) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the Provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing 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 and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 the period of five (5) ending two years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD National Association of Securities Dealers, Inc. (the "NASD"), the New York Stock Exchange (the "NYSE") or any securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(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 If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a transfer agent ("Transfer Agent"termination under Section 10 or 11 hereof) andor if this Agreement shall be terminated by the Underwriters because of any inability, if necessary under failure or refusal on the jurisdiction of incorporation part of the CompanyCompany to perform any agreement herein or to comply with any of the terms or provisions hereof, a Registrar the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (which may be including travel expenses and fees and expenses of counsel for the same entity as the Transfer AgentUnderwriters but excluding wages and salaries paid by you) for its Common Stockreasonably incurred by you in connection herewith.
(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 Shares to be sold by it hereunder for the manner, and subject to the conditions, purposes set forth under "Use of Proceeds" in the Prospectus. No portion .
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the net proceeds time and manner of such filing.
(l) For a period of 120 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 be usednot, directly or indirectly, issue, sell, offer or contract to acquire sell or otherwise dispose of or transfer any shares of Common Stock or securities issued 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 Incentive Option Plan which is referenced in the Registration Statement under the caption "Management," or (iii) convertible securities or securities exchangeable for shares of Common Stock of the Company outstanding on the date hereof and described in the Registration Statement.
(m) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the Companyfinancial statements appearing in the Prospectus.
(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 all provisions of any undertakings contained in the applicable requirements under the Act, the Exchange Act, and the Rules and RegulationsRegistration Statement.
(o) The Company shall furnish will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to the Representative as early as practicable prior to each cause or result in, or which will constitute, stabilization or manipulation 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 price of the latest available unaudited interim financial statements shares of Common Stock to facilitate the sale or resale of any 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) hereofShares.
(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, will use its best efforts to maintain the Amex quotation of the 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 the extent outstandingpermit market making transactions and secondary trading.
(q) For a period of five (5) years from so long as the Closing DateCompany's Common Stock is qualified for trading on the NYSE, the Company shall furnish to will comply in all material respects with 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 filing and other requirements 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 CompanyNYSE.
(r) As soon as practicable, The Company will (i) but in no event more than five (5) business days before the effective date of the Registration Statement, timely file a Form 8-A with the Commission providing for NYSE an additional listing application, together with all documents and notices required by the registration under NYSE of companies that have issued securities that are listed on the Exchange Act of the Securities NYSE and (ii) but in no event more than thirty (30) days after use its commercially reasonable efforts to maintain such listing on the effective NYSE or be listed on another national securities exchange on a continuous basis for at least three years from the 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) yearshereof.
(s) The Company hereby agrees that it will not, for a If at any time during the period of twelve (12) months from beginning on 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 Statement becomes effective and ending on the later of (i) the grantdate 25 days after such effective date (or, issueif the Underwriter's option granted pursuant to the Section 2 hereof has not been exercised by such date, sale then 30 days after such effective date) 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 date that is the earlier of consideration other than cash; or (iiiA) the existence date on which the Company first files with the Commission a Quarterly Report on Form 10-Q after such effective date and (B) the date on which the Company first issues a quarterly financial report to shareholders after such effective date, any rumor, publication or event relating to or affecting the Company shall occur as a result of stock appreciation rightswhich, phantom options or similar arrangements.
(t) Until in the completion reasonable opinion of the distribution Underwriters, the market price of the SecuritiesCommon Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates an amendment of or supplement to the Prospectus), the Company shall notwill, without the prior after written consent of notice from the Representative advising the Company to the effect set forth above, forthwith prepare, consult with the Representative concerning the substance of, and Underwriters' Counselconsult with Company counsel to determine whether or not it is advisable, issueunder the circumstances, directly or indirectly, any to disseminate a press release or other communication or hold any press conference with respect public statement, reasonably satisfactory to the Company Representative, responding to or its activities commenting on such rumor, publication 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 operationsevent.
(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 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 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 Exchange Act before termination of the offering of the 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 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, 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 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 any state securities commission regulatory authority 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 fifth 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 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 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 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 forty-five (45) 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) 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 five seven (57) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(vi) any additional information of a public nature concerning the Company (and any future subsidiary) Company, or its businesses which the Representative may request. .
(vii) During such 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(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 ("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 Underwriter with true original originally-executed 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 Up Agreements which are in form and substance satisfactory to 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 StockUnderwriter. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent its transfer agent authorizing it such transfer agent to place appropriate legends on the certificates representing the securities of the Company subject to the Lock-up 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 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) Neither the Company, the Subsidiary, nor any of its or 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.
(mn) 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 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.
(no) 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.
(op) 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 its letter to be furnished pursuant to Sections Section 6(j) hereof.
(pq) The Company shall cause the Common Stock to be quoted on Amex and, for a period of five (5) years from the date hereofOver-the-Counter Electronic Bulletin Board or the SmallCap Stock Market, use its best efforts to maintain the Amex quotation listing of the Common Stock to the extent outstandingShares.
(qr) 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 StockShares, (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.
(rs) 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 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 Moody's OTC Manual and to ▇▇▇▇▇'▇ OTC Manual and to continue ▇▇e such inclusion for a period of not less than five seven (57) 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 Firm Securities, the Company shall not, 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 after the effective date hereof, and (ii) the sale to the public of the Representative's SecuritiesRegistration Statement, the Company will not take any action or actions which may prevent or disqualify Representative shall have the right to designate for election one (1) individual to the Company's use Board of Form SB-2 Directors (or other appropriate formthe "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) for the registration under the Act individual to attend meetings of the RepresentativeCompany's SecuritiesBoard. 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.
(v) For a period of five twenty-four (524) 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 effective date of the Registration Statement in a manner which is more favorable to such officer, director or key employee, without the prior written consent of the Representative.
(w) For a period of three (3) years after the effectieffective date of the Registration Statement, the Company, any subsidiaries and any affiliates hereby grant a thirty-day (30) right of first refusal for any sale of securities to be made by the Company, any affiliates and any subsidiaries.
(x) The Company will use its best efforts to maintain the effectiveness of the Registration Statement for a period of five years after the date hereof.
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) of the Registration Statement time and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any 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 Exchange Act before termination and of the offering of the 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 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, 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) 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, (iii) 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; such purposes, and (iv) within the period of time referred to in Section 5(i) hereof, of any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the receipt Company, the Operating Partnership or the subsidiaries, taken as a whole, or of any comments from event that comes to the Commission; and (v) attention of the Company or the Operating Partnership that makes 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 (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 shall issue any state securities commission 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 Representative, 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(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 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 fifth 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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 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 copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicableeach Underwriter who has previously requested Prospectuses, 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 stockholderswithout charge, a balance sheet reasonable number 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedthereof.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction securities or Blue Sky laws of incorporation 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 CompanyShares; 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 the Class A Common Stock fails to be, or ceases to be, listed on a Registrar national securities exchange, the Company will use its best efforts to qualify or register its Class A Common Stock for sale in non-issuer transactions under (which may be or obtain exemptions from the same entity as application of) the Transfer Agent) 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 its Common Stocka period of one year after the date hereof.
(j) The Company will furnish make generally available to its security holders a consolidated earnings statement (in form complying with the Representative or on provisions of Rule 158) covering the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pretwelve-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 month period commencing after the effective date of the Registration Statement, in each case and ending not later than 15 months thereafter, as soon as available and in practicable after the end of such quantities as period, which consolidated earnings statement shall satisfy the Representative may requestprovisions of Section 11(a) of the Act.
(k) On During the Prospectus Delivery Period, the Company will furnish to you and, upon your request, to each of the other Underwriters, as soon as available, a copy of each proxy statement, quarterly or before annual report or other report of the effective 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 national securities exchange; provided, the Company will be deemed to have furnished such information to the extent it is filed on ▇▇▇▇▇.
(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-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 90th day after the date of the Registration StatementProspectus (the “Lock-Up Period”), 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(i) offer, offer pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant an option for the sale any option, right or purchase warrant to purchase, lend or otherwise dispose of, assigndirectly or indirectly (or enter into any transaction or device that is designed to, transferor could be expected to, pledgeresult in the 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, hypothecate (ii) enter into any swap or otherwise encumber other transaction that transfers to another, in whole or dispose 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 amendments, with respect to the registration of any shares of Class A Common Stock or securities convertible intoconvertible, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of into Class A Common Stock (either pursuant to Rule 144 or any other securities of the Rules and Regulations Company or otherwise(iv) or dispose of publicly disclose the intention to do any beneficial interest therein without the prior consent of the Representatives (collectivelyforegoing, the "Lock-up Agreements"). During the 12 month period commencing on the effective date of the Registration Statement, the Company shall not, in each case without the prior written consent of the RepresentativeRepresentatives on behalf of the Underwriters. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, sell(B) any shares of Class A Common Stock or any securities convertible (in accordance with their terms, contract at the option of the holder or offer otherwise) into or exercisable or exchangeable for Class A Common Stock issued upon the exercise of options granted under the Company’s, Amended and Restated 2005 Long Term Incentive Plan (the “Amended 2005 LTIP”) or the CatchMark Timber Trust, Inc. 2017 Incentive Plan (the “2017 LTIP”), in each case that are outstanding on the date of this Agreement, (C) the shares of Class A Common Stock issuable upon the vesting and conversion of restricted stock units issued to sell, issue, transfer, assign, pledge, distributethe Company’s named executive officers that are outstanding on the date of this Agreement, or otherwise dispose of(D) any shares of Class A Common Stock or 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 shall be subject to a customary lock-up agreement substantially consistent with the terms set forth in Exhibit A hereto.
(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, 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, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 Class A Common Stock to be quoted on Amex and, for a period facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any of the Common Stock to the extent outstandingShares.
(q) For a period The Company will timely file with the NYSE all documents and notices required by the NYSE of five (5) years from companies that have securities that are traded on 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 CompanyNYSE.
(r) As soon The Company 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 Class A Common Stock will be listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as practicable, (ithe transfer agent) 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) yearsClass A Common Stock.
(s) The Company hereby agrees that will file, within applicable deadlines, all material required to be filed by it will notwith the Commission pursuant to Section 12(g), for a period 13(a), 13(c), 14 or 15(d) of twelve the Securities Exchange Act of 1934, as amended (12) months from the effective “Exchange Act”), subsequent to the date of the Registration StatementProspectus and during the Prospectus Delivery Period, 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 required in connection with the greater offering 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 arrangementsShares.
(t) Until The Company will use its best efforts to meet the completion requirements to qualify, for the taxable year ending December 31, 2018, for taxation as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (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“Code”), 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 use its best efforts to continue to qualify for taxation as a REIT under the Code unless the Company's use ’s Board of Form SB-2 (or other appropriate form) for Directors determines in good faith that it is no longer in the registration under the Act best interests of the Representative's SecuritiesCompany and its stockholders to so qualify or to be so qualified.
(v) For a period of five (5) years after the effecti
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 material 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 shall issue any state securities commission 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 fifth 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 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 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 objectCommission.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Shares 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the 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 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 General Disclosure Package (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the General Disclosure Package (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 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. In addition, 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.
(gi) As soon 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12offering 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 beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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.
(hk) During a the period of five (5) ending three years after from the date hereof, upon your request, the Company will furnish to its stockholdersyou and to each of the other Underwriters as requested, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to stockholders or filed with the Commission, the NASD Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request.
(and l) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 12 hereof, other than clause (iv)) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe other Underwriters for all reasonable out-of-pocket costs and expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters) are consolidated, and will be accompanied not to exceed $100,000 reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou in connection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on 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 60th day after the effective date of the Registration StatementProspectus (the “Lock-Up Period”), 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 notnot to, directly or indirectly, issue, (1) offer to sellfor sale, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than the Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, qualified stock option plans 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 other employee compensation plans existing on the effective date of the Registration Statementhereof or pursuant to currently outstanding options, the Company shall not, without the prior written consent of the Representative, sell, contract warrants or offer to sell, issue, transfer, assign, pledge, distributerights), or otherwise dispose of, directly sell or indirectly, any shares of Common Stock or any 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. On , whether any such transaction described in clause (1) or before (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 (other than the filing of a registration statement on 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 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”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgersProspectus.
(lp) Neither The Company will comply with all provisions of any undertakings contained in the Company, the Subsidiary, nor Registration Statement.
(q) The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of any securities the shares 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 facilitate the sale or resale of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation any 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 CompanyShares.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date The Company will timely file with NASDAQ all documents and notices required by NASDAQ 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) yearscompanies that have or will issue securities that are traded on NASDAQ.
(s) The Company hereby agrees that it will notshall engage and maintain, for at its expense, a period of twelve (12) months from transfer agent and, if necessary under 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 jurisdiction of its executive officers incorporation or directors or to the rules of any holder of 5% or more of 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; (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 1 contract
Sources: Underwriting Agreement (Adamis Pharmaceuticals 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 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 Exchange Act before termination of the offering of the 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 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 writing, (i) when the Registration Statement, as amended, becomes effective, 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 any state securities commission authority 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 fifth 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 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 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") 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 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) As soon as practicable, but in any event not later than forty-five (45) 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) 90 days in the event that the end of such fiscal quarter is the end of the Company's ’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 RepresentativeUnderwriter, 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 orderUnderwriter, without charge, at such place as the Representative 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 Representative Underwriter may request.
(ki) On or before the effective date of the Registration Statement, the Company shall provide the Representative Underwriter with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twelve (12) 12 months from the effective date of the Registration Statement, each the officers, directors and employees of the Company's stockholders Company and certain holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees designated by the Underwriter agree that it or he or she will not, not directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate sell or otherwise encumber or dispose of any such Common Stock beneficially owned by them (aggregating not less than 5,793,111 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 Stock)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 StockUnderwriter (the “Lock-up Agreements”). On or before the Closing DateInitial Closing, the Company shall deliver instructions to the Transfer Agent authorizing it 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 ’s ledgers.
(lj) Neither Until such time as the Common Stock and Common Stock underlying the warrants included in the Units issuable upon exercise of the Underwriter’s Warrant have been sold by the Underwriter or its designees or transferees, the Company shall not, without the prior written consent of the Underwriter, issue, or grant options or rights for the issuance of, (a) securities convertible or exchangeable for Common Stock except pursuant to the Company, ’s employees’ stock option plan which have conversion or exercise prices based on 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 market price of any securities of the Company’s Common Stock or any other contingent standard, or (b) preferred stock with preferences in excess of the original purchase price thereof or having rights to dividends other than annual dividends not to exceed the lesser of two times (2x) the then annual interest rate on a 10-year United States Treasury Note or 20%.
(mk) 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.
(nl) 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, time under the Act, the Exchange Act, 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.
(om) The Company shall furnish to the Representative Underwriter as early soon as practicable prior to each of the date hereof, the date of the Initial Closing Date and of each Option Closing DateAdditional 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 (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 ’s independent public accountants, as stated in their letters its letter to be furnished pursuant to Sections 6(jSection 5(h) hereof.
(pn) 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 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 of the Securities 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) yearsAct.
(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.
(to) Until the completion of the distribution of the SecuritiesUnits, the Company shall not, not without the prior written consent of the Representative and Underwriters' CounselUnderwriter, 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 any trade releases issued in the ordinary course of the Company's ’s business consistent with past practices with respect to the Company's ’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 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Initial Purchasers as follows:
(a) The Company shall use its best efforts to cause during the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or period ending 90 days after the effective date hereof to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the Registration Statementhappening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or Exchange Act before termination in light of the offering of the Shares by the Underwriters of circumstances under which the Representative shall they were made, not previously have been advised and furnished with a copy, or misleading; to which the Representative shall have objected 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, if the provisions Initial Purchasers promptly 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 Offering Memorandum or the ProspectusOffering Memorandum, 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 Preferred Stock for offering or sale in any jurisdiction or and of the initiation, initiation or the threatening, threatening of any proceeding for that any such purpose; (iv) and to use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the receipt Preliminary Offering Memorandum or of the Offering Memorandum or suspending 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 any state securities commission shall enter a stop order or suspend such qualification at and, if any timesuch suspension is issued, the Company will make every to use its reasonable best effort to obtain promptly the lifting of such order.thereof at the earliest possible time;
(cb) The Company shall file the Prospectus (in form and substance satisfactory to furnish promptly to the Representative) or transmit Initial Purchasers and counsel for the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (orInitial Purchasers, if applicable and if consented to by the Representativewithout charge, 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 fifth business day after the effective date as many copies 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 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 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 Preliminary Offering Memorandum and the Exchange Act, as now Offering Memorandum (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 ) as may be reasonably requested; to furnish to the Initial Purchasers on the date hereof a copy of the independent accountants' report included in the Offering Memorandum signed by the accountants rendering such report; and the Company hereby consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto, in connection with Exempt Resales of the Preferred Stock;
(c) if the delivery of the Offering Memorandum is required at any time when a prospectus relating to in connection with the Securities is required to be delivered under sale of the Act, Preferred Stock and if at such time any event events shall have occurred as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, Offering Memorandum as then amended or supplemented, includes supplemented 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 the Offering Memorandum is delivered, not misleading, or if for any other ## CT01/SCHIJ/68169.34 10 11 reason it shall be necessary at such time to amend or supplement the Offering Memorandum in order to comply with any law, to notify the Initial Purchasers immediately thereof, and to promptly prepare and furnish to the Initial Purchasers an amended Offering Memorandum or a supplement to the Offering Memorandum so that statements in the Offering Memorandum, as so amended or supplemented, will not, in light of the circumstances under which they were made when it is necessary so delivered, be misleading, or so that the Offering Memorandum will comply with applicable law. The Initial Purchasers' delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions set forth in Section 5 hereof;
(d) during the five-year period following the Closing Date, provided any of the Preferred Stock or the Notes remain outstanding, to furnish to the Initial Purchasers all public reports and all reports, documents, information and financial statements furnished by the Company to the Commission pursuant to the Trust Indenture Act, the Exchange Act or the Rules and Regulations;
(e) during the three-year period following the Closing Date, for so long as and at any time that it is not subject to amend Section 13 or 15(d) of the Prospectus Exchange Act, upon request of any holder of the Preferred Stock or the Notes, to furnish to such holder, and to any prospective purchaser or purchasers of the Preferred Stock or the Notes designated by such holder, information satisfying the requirements of subsection (d)(4) of Rule 144(A) under the Securities Act. This covenant is intended to be for the benefit of the holders from time to time of the Preferred Stock and the Notes, and prospective purchasers of the Preferred Stock or the Notes designated by such holders;
(f) to use the proceeds from the sale of the Preferred Stock in the manner described in the Offering Memorandum under the caption "Use of Proceeds";
(g) in connection with the Offering, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(h) to use its reasonable best efforts to do and perform all things required to be done and performed under this Agreement by it that are within its control prior to or after the Closing Date and to use reasonable efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(i) except following the effectiveness of the Shelf Registration Statement, to not authorize or knowingly permit any person acting on its or their behalf to, solicit any offer to buy or offer to sell the Preferred Stock by means of any form of general solicitation or general advertising (as such terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act;
(j) to not, and to use its reasonable best efforts to ensure that no affiliate (as such term is defined in Rule 501(b) under the Securities Act) of the Company will, offer, sell or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Securities Act) which could be integrated with the sale of the Preferred Stock in a manner that would require the registration of the Preferred Stock under the Securities Act;
(k) to not, so long as the Preferred Stock or the Notes are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(l) to cooperate with the Initial Purchasers and counsel for the Initial Purchasers to qualify the Preferred Stock for offering and sale under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Preferred Stock; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to ## CT01/SCHIJ/68169.34 11 12 file a general consent to service of process or to subject it to taxation in any jurisdiction where it is not so qualified or so subject;
(m) to comply with the Act, Registration Rights Agreement and all agreements set forth in 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 representation letters of the Company during which to The Depository Trust Company relating to the effective date approval of the Registration Statement occurs Preferred Stock and/or the Notes for "book-entry" transfers;
(ninety (90n) days in connection with the event that Offering, until the end of such fiscal quarter is Initial Purchasers shall have notified the end Company of the Company's fiscal yearcompletion of the resale of the Preferred Stock, to not and use its reasonable best efforts to not permit any affiliated purchasers (as defined in Rule 10b-6 under the Exchange Act), either alone or with one or more other persons, to bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Preferred Stock, or attempt to induce any person to purchase any Preferred Stock; and to not and use its reasonable best efforts to not permit any of its affiliated purchasers to make bids or purchases for the Company shall make generally available to its security holderspurpose of creating actual, or apparent, active trading in or of raising the manner specified in Rule 158(b) price of the Rules and Regulations, and Preferred Stock;
(o) prior to the RepresentativeClosing Date, 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 to 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently issue any press release or other communication directly or indirectly or hold any press conference with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished respect to the Company's stockholders and certified by the Company's principal , its condition, financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholdersotherwise, a balance sheet or earnings, business affairs or business prospects, without the prior consent of the Company as at Initial Purchasers, unless in 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
(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 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 judgment of the Company and its subsidiary(ies) are consolidatedcounsel, and will be accompanied after notification to the Initial Purchasers, such press release or communication is required by similar financial statements for any significant subsidiary which is not so consolidated.law;
(ip) The Company will to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(q) to not take any action prior to the Closing Date which in the Company's reasonable judgment would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(c) hereof;
(r) to maintain a transfer agent ("Transfer Agent") and, if necessary under the laws of the jurisdiction of incorporation of the Company, a Registrar registrar (which may be the same entity as the Transfer Agenttransfer agent) for its the Common Stock.; and
(js) 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, to use its best efforts to maintain the Amex quotation Private Offerings, Resale and Trading through Automated Linkages ("Portal") Market (or after the Shelf Registration Statement, Nasdaq Stock Market or national securities exchange listing) listing of the Common Preferred Stock or the Notes, 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 Nasdaq Stock Market (or sale or (ynational securities exchange) to any of its executive officers or directors or to any holder of 5% or more listing 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 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each the several Underwriters participating in the offering of the Underwriters as followsUnderwritten Securities that:
(a) The Company shall use its best efforts to cause Immediately following the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date execution of the Registration Statementapplicable Terms Agreement, file any amendment to the Registration Statement or supplement to Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or file the applicable Warrant Agreement, if any, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any document under delayed delivery arrangements, and such other information as you and the Act or Exchange Act before termination of Company deem appropriate in connection with the offering of the Shares by Underwritten Securities; and the Underwriters Company will promptly transmit copies of which the Representative shall not previously have been advised and furnished with a copy, or Prospectus Supplement to which the Representative shall have objected or which is not in compliance with Commission for filing pursuant to Rule 424(b) of the Act, the Exchange 1933 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 in writing (i) when the Registration Statement, as amended, becomes effective, 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) you promptly 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 any proceedings for that purpose; (iii) , 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 you promptly of the issuance by transmittal to the Commission or by any state securities commission for filing of any proceedings for Prospectus Supplement or other supplement or amendment to the suspension of Prospectus or any document to be filed pursuant to 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) 1▇▇▇ ▇▇▇. The Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information.
(c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement.
(d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If Prospectus, whether pursuant to the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time1933 Act, 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) 1934 Act 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 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 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)otherwise, and will furnish the Representative you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may befiling, and will not file any such prospectus amendment or supplement or other documents in a form to which you or counsel for the Representative Underwriters shall reasonably object in writing or ▇▇▇▇▇▇which is not in material compliance with the 1933 Act, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall objectthe 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, as applicable.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will deliver to the time each Underwriter a signed copy of the Registration Statement becomes effective, as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to qualify the Securities for offering and sale Item 12 of Form S-3 under the securities laws 1▇▇▇ ▇▇▇) and will also deliver to such Underwriter a conformed copy of such jurisdictions the Registration Statement as the Representative may designate to permit the continuance originally filed and of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such each amendment thereto (including 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 incorporated by the laws of such jurisdiction to continue such qualificationreference but without exhibits).
(f) During The Company will furnish to each Underwriter, from time to time during the time period when a prospectus the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the 1933 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 1934 Act or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. 1934 Act Regulations.
(g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the Act, 1933 Act or the 1934 Act any event shall have occurred relating to or affecting the Company 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify the Representative promptly you thereof and prepare and file with the Commission an appropriate amendment will amend or supplement in accordance with Section 10 of the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, each the 1934 Act or otherwise, as may be necessary to correct such amendment untrue statement or supplement omission or to be satisfactory to Underwriters' Counselmake the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement supplement.
(h) The Company will cooperate with the Underwriters to enable the Underwritten Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as soon you may designate and at the request of the Underwriters will make such applications and furnish such information as available may be required of it as the issuer of the Underwritten Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, 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 quantities jurisdiction. 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 Underwritten Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, to continue such qualifications in effect for so long a period as the Underwriters may requestreasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified.
(gi) As With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event not no later than forty-five (45) 60 days after the end close 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 Representativecovered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with Section 11(a) of the 1933 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 months beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (12as defined in said Rule 158) consecutive months after the effective date of the Registration Statement.
(hj) 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 five (5) years after from the date hereof, the Company will furnish deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, shareholders; and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholdersyou, 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 as soon as they are available, copies of any other reports to its stockholders, a balance sheet of (financial or other) which the Company shall publish or otherwise make available to any of its security holders as at the end of the preceding fiscal year, together with statements of operations, stockholders' equitysuch, 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 any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;
(v) every press release and every material news item or article of interest to . In the financial community in respect of the Company, or its affairs, which was released or prepared by or on behalf of the Company; and
(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 seven-year period, if event 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(ies) subsidiaries are consolidated, and will be accompanied by similar consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for any all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under subsidiaries as defined in 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 request1933 Act Regulations.
(k) On or before The Company will use 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 net proceeds received by it from the effective date sale of Underwritten Securities in the Registration Statement, each manner specified in the Prospectus under “Use 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 ledgersProceeds.”
(l) Neither The Company will use its best efforts to continue to meet the Company, requirements to qualify as a REIT under the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within Code for the meaning taxable year in which sales of the Rules and Regulations) will takeUnderwritten Securities are to occur, directly or indirectly, any action designed to, or which might unless otherwise specified in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the CompanyProspectus.
(m) The Company shall apply Company, during the net proceeds from period when the sale Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Securities in Underwritten Securities, will file promptly all documents required to be filed with the mannerCommission pursuant to Section 13, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion 14 or 15 of the net proceeds will be used, directly or indirectly, to acquire any securities issued 1934 Act within the time periods prescribed by the Company1934 Act and the 1934 Act Regulations.
(n) The If the Preferred Shares or Depositary Shares are convertible into Common Shares or if Warrants are issued, the Company shall timely file will reserve and keep available at all such reportstimes, forms free of preemptive rights or other documents as may be required (including, but not limited tosimilar rights, a Form SR sufficient number of Common Shares or Preferred Shares, as the case may be required pursuant be, for the purpose of enabling the Company to Rule 463 under satisfy any obligations to issue such shares upon conversion of the Act) from time to timePreferred Shares or the Depositary Shares, under as the Actcase may be, or upon exercise of 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 RegulationsWarrants.
(o) The Company shall furnish to If the Representative as early as practicable prior to each of the date hereofPreferred Shares or Depositary Shares are convertible into Common Shares or if Warrants are exercised, 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, will use its best efforts to maintain list the Amex quotation Common Shares issuable upon conversion of the Common Stock to Preferred Shares or Depositary Shares or upon exercise of the extent outstanding.
(q) For a period of five (5) years from Warrants on the Closing Date, the Company shall furnish to the Representative at NYSE or such other national exchange on which the Company's sole expense, (i) daily consolidated transfer sheets relating to the ’s 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 CompanyShares are then listed.
(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 1 contract
Sources: Underwriting Agreement (Developers Diversified 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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 & ▇▇▇▇▇▇▇▇▇ LLP 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 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 RepresentativeRepresentatives, 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 five seven (57) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) 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) 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
(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 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(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 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 stockholders 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 the Representatives Millennium (collectively, the "Lock-up Agreements"). During the 12 twelve (12) month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the RepresentativeMillennium, 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) Neither None of each of the Company or any subsidiary of 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 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(j6(n) and 6(o) hereof.
(p) The Company shall cause the Common Stock to be quoted listed on Amex Nasdaq/NMS and, for a period of five seven (57) years from the date hereof, use its best efforts to maintain the Amex quotation 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, 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 seven (57) years.
(s) The Company hereby agrees that 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 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 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 (iiiiv) the existence of stock appreciation rights, phantom options or similar arrangements.
(t) Until the completion of the distribution of the Securities. Furthermore, 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) agrees that for the registration under the Act of the Representative's Securities.
(v) For a period of five twelve (512) years after months from the effectieffective 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 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 commercially reasonable efforts to cause the Registration Statement and any amendments thereto to become effective as effective, (ii) if the Company and the Representative 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 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 commercially reasonable 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 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 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 Exchange Act before termination of the offering of the 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 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 prepare and file with the Representative and confirm Commission, promptly upon the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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) 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 which in the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time, opinion of the Company Representative is necessary to enable the several Underwriters to continue the distribution of the 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 fifth 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 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 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 relating to the Shares 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 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 promptly thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission and file such document with the Commission an appropriate amendment Commission; and in case any Underwriter is required to deliver a prospectus relating to the Shares nine (9) months or supplement in accordance with Section 10 more after the effective date of the ActRegistration Statement, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to upon the Underwriters copies request of the Representative and at the expense of such amendment Underwriter will prepare promptly such prospectus or supplement prospectuses as soon as available and in such quantities as may be necessary to permit compliance with the Underwriters may requestrequirements of Section 10(a)(3) of the Securities Act.
(gd) As soon as practicableThe Company will deliver to the Representative, but in any event not later than forty-five (45) days after at or before the end Closing Dates, signed copies of the 12Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto and will deliver to the Representative such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representative may reasonably request. The Company will deliver or mail to or upon the order of the Representative, from time to time until the effective date of the Registration Statement, as many copies of the Pre-month period beginning Effective Prospectus as the Representative may reasonably request. The Company will deliver or mail to or upon the order of the Representative on the day after the end date of the fiscal quarter 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 Company during which Prospectus, in final form or as thereafter amended or supplemented, as the Representative 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 occurs shall be borne by the Underwriters required to deliver such prospectus.
(ninety (90e) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the The Company shall will make generally available to its security holdersstockholders as soon as practicable, in but not later than fifteen (15) months after the manner specified in Rule 158(b) effective date of the Rules and Regulations, and to the RepresentativeRegistration Statement, an earnings statement which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 Securities Act, covering a period of at least twelve (12) consecutive months beginning after the “effective date date” (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representative 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 Representative may designate and at the request of the Representative 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 Representative may reasonably request for the distribution of the Shares. The Company will advise the Representative 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 cooperation of the Representative, use its commercially reasonable efforts to 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 Rules and Regulations. So long as the Company 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.
(h) 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 National, 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 Representative’s Warrant and the shares issuable upon the exercise of the Representative’s Warrant.
(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 Representative, the Company, on the First Closing Date, shall sell to Representative or to Representative’s Designee, as the case may be, the Representative’s 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 the Representative’s Warrant.
(m) During a period of five (5) three years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earningsNational, 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 Underwriter who may so request 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 availablewriting, copies of all periodic and special reports (financial or other) mailed furnished to stockholders;
(iv) as soon as they are available, copies stockholders of the Company and of all information, documents and 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(in) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar registrar (which may be the same entity as the Transfer Agenttransfer agent) for its Common Stock.
(jo) The Company will furnish to During the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies period 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 three years 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 Statementhereof, 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 Securities Act, the Exchange Act, and 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 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 Exchange Act 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) hereofrules and regulations promulgated thereunder.
(p) The Company shall cause To comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Common Stock to be quoted on Amex and, for a period of five (5) years from Directed Shares are offered in connection with the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock to the extent outstandingDirected Share Program.
(q) For a period of five (5) years from The Company will endeavor to qualify 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 shares for offer 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 sale under the Exchange Act securities or blue sky laws 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) yearsjurisdictions as National shall reasonably request.
(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 1 contract
Sources: Underwriting Agreement (Marchex Inc)
Covenants and Agreements of the Company. 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 effective the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at (ii) prevent the issuance of 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 Exchange Act before termination of the offering of the 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 or which is not order described in compliance with the Act, the Exchange Act or the Rules and Regulations.Section 4.1(b)(v) hereof;
(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 you promptly:
(i) when the Registration Statement has become effective and the time and date of any filing of any amendment or supplement to the Registration Statement, as amendedany Prospectus and any Issuer Free Writing Prospectus, becomes effective, if and 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 time and when date that any post-effective amendment to the Registration Statement becomes effective; ;
(ii) if Rule 430A under the Act is employed, the time and date of filing of the Prospectus pursuant to Rule 424(b) under the Act;
(iii) 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 Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or any Prospectus or (z) any request by the Commission for additional information;
(v) 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 in Section 4.1(j) hereof), 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 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 material 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;
(c) The Company will use its reasonable best efforts to prevent the issuance of any stop order as referred to under Section 4.1(b)(v). If at any time the Commission for or any amendment other government or regulatory authority shall issue any stop order as referred to under Section 4.1(b)(v), the Company will use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(d) The Company will provide the Underwriters with copies of the form of any Prospectus, without charge, in such number as the Underwriters may reasonably request, and file the Rule 424(b) Registration Statement and such 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 second business day immediately following the date hereof;
(e) The Company will furnish to you, without charge, such number of conformed copies of the Registration Statement or and the Rule 424(b) Registration Statement, without exhibits thereto, and any amendment thereto, as you may reasonably request;
(f) The Company will promptly prepare and file with the Commission any amendment or supplement to the Registration Statement, the Prospectus or for additional information. If any Issuer Free Writing Prospectus that may be (i) in the Commission judgment of the Company, be required (y) to comply with the Act or any state securities commission shall enter a stop order other law or suspend such qualification at (z) in relation to Section 1.1.1(a) hereof or (ii) requested by the Commission;
(g) Before (i) using, authorizing, approving, referring to, distributing or filing any timeIssuer Free Writing Prospectus, (ii) filing (x) any Prospectus, (y) any Rule 462(b) Registration Statement or (z) any amendment or supplement to the Registration Statement or the Prospectus, or (iii) distributing any amendment or supplement to the Time of Sale Information or the Prospectus, the Company will make every effort furnish promptly to obtain promptly the lifting Representative and counsel to the Underwriters a copy of such order.proposed document for review and will not use, authorize, approve, refer to, distribute or file any such document to the extent that (A) the Representative has not consented to the Company’s performance of such actions (which consent shall not be unreasonably withheld) or (B) it is not in compliance with the Act or any other law;
(ch) The Company shall file the Prospectus (in form and substance satisfactory will not make any offer relating to the RepresentativeClass A Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent;
(i) or transmit the The Company will, pursuant to reasonable procedures developed in good faith, retain any Issuer Free Writing Prospectus by a means reasonably calculated to result in filing that is not filed with the Commission pursuant in accordance with Rule 433 under 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 any Prospectus or would include an untrue statement of a material fact or omit to Rule 424(b)(1) (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, the Company will (x) notify you and if consented (y) prepare and furnish without charge to by the Representativeeach 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, pursuant to Rule 424(b)(4)statement or omission or effect such compliance;
(j) 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 fifth business day after the effective date reasonable opinion 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 counsel for the Company proposes for use a prospectus is required by the Underwriters Act to be delivered in connection with the offering and sale of the Securities which differs from Shares by any Underwriter or a dealer (the corresponding prospectus on file at the 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“Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will furnish the Representative with deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, thereto) as the case they may be, and will not file any such prospectus to which the Representative or ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall object.reasonably request;
(ek) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior consents to the time use of 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 Prospectus and the Exchange Act, as now Time of Sale Information (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 amendment or dealings in the Securities supplement thereto) in accordance with the provisions hereof of the Act and with the Prospectussecurities 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, or any amendments or supplements theretoboth in connection with the offering and sale of the Shares and for the Prospectus Delivery Period. If at any time when a prospectus relating prior to the Securities is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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, 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 4.1(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 the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof;
(l) The Company will reasonably 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 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 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;
(m) The Company will make generally available to its securityholders as soon as available and reasonably practicable an earnings statement (in such quantities as form complying with the Underwriters may request.
provisions of Rule 158), which need not be audited, covering a twelve (g) As soon as practicable, but in any event not later than forty-five (45) days 12)-month period commencing 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 (90or any Rule 462(b) days in Registration Statement, as 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 Regulationscase may be, and to the Representativeending not later than fifteen (15) months thereafter, an which such earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 officer158 thereunder;
(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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(in) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use 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, Proceeds” 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 Time of Sale Information and the Prospectus;
(o) The Company shall provide the Representative with true original copies of duly executed, legally binding will cause each officer and enforceable agreements pursuant to which, for a period of twelve (12) months from the effective date director of the Registration StatementCompany set forth on Schedule III(a) and (b) hereto to furnish to the Representative, each 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”);
(p) Both the amended and restated certificate of incorporation of the Company's stockholders Company (the “Amended and holders Restated Charter”) and the Bounty LLC Agreement that will be in effect immediately following the Closing Date will include the provisions, which shall be substantially in the form 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 Exhibit B hereto and (the sale or purchase of, assign, “Lock-Up Provisions”) which prohibit the transfer, pledgesale, hypothecate pledge or otherwise encumber other disposition by each Existing Owner of (or dispose of entry into any transaction or device that is designed to, or could be expected to, result in the disposition at any time in the future of) any shares of Class A Common Stock or securities convertible into, or exercisable or exchangeable for or evidencing any right to purchase or subscribe for for, any shares of Class A 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 for a period commencing on the effective date hereof and ending on the 180th day after the date of the Registration StatementProspectus (the “Lock-Up Period”);
(q) During the Lock-Up Period, the Company shall will not take, and will not cause Bounty LLC to take, any actions or steps to amend, restate and/or change the Amended and Restated Charter and/or the Bounty LLC Agreement, respectively, in a manner inconsistent with the Lock-Up Provisions and will not waive, and will not cause Bounty LLC to waive, the Lock-Up Provisions without the prior written consent of the Representative and will take, and will cause Bounty LLC to take, all reasonably necessary actions to preserve the Lock-Up Provisions during the Lock-Up Period. The Company will direct, and will cause Bounty LLC to direct, its transfer agent to place stop transfer restrictions upon the securities subject to the Lock-Up Provisions and the Company will not, and will not cause Bounty LLC to, during the Lock-Up Period, deliver any instruction or opinion of counsel to its transfer agent permitting the removal of such stop transfer restrictions without the prior written consent of the Representative;
(r) During the Lock-Up Period, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose ofthe Company will not, directly or 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 Class A Common Stock or securities convertible into, or exercisable or exchangeable for, any shares of Class A Common Stock (other than the Class A Common Stock issued pursuant to the terms of this Agreement (including, for the avoidance of doubt, the Additional Shares), the issuance of Common Stock and Bounty LLC Units in connection with the Corporate Reorganization and the Offering, the issuance by the Company of shares of Class A Common Stock upon the exchange of Class B Common Stock together with Bounty LLC Units pursuant to the Bounty LLC Agreement, as described in the Time of Sale Information and the Prospectus, or any Class A Common Stock, bonus or other options or rights granted or exercised pursuant to any employee stock plan (the “Stock Options”) or Class A 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 Class A Common Stock or securities convertible into, or exercisable or exchangeable for Class A Common Stock (other than Stock Options or Class A 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 Class A 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 Class A Common Stock. On , whether any such transaction is to be settled by delivery of any shares of Class A Common Stock or before other securities, in cash or otherwise;
(iii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in any shares of Class A Common Stock or other securities within the meaning of Section 16 of the Exchange Act;
(iv) file or cause to be filed a registration statement (other than any registration statement on Form S-8 relating to a long-term incentive plan described in the Prospectus, the Registration Statement or any amendment or supplement to the Registration Statement filed in accordance with this Agreement), including any amendments thereto, with respect to the registration of any shares of Class A Common Stock or securities convertible into, exercisable or exchangeable for, any shares of Class A Common Stock or any other securities of the Company; or
(v) publicly disclose the intention to take any of the actions described under Sections 4.1(r)(i), 4.1(r)(ii), 4.1(r)(iii) or 4.1(r)(iv), in each case without the prior written consent of the Representative;
(s) At the request of the Representative, prior to the Closing Date and any Additional Closing Date, the Company shall deliver instructions will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and the Subsidiaries for any period subsequent to the Transfer Agent authorizing it to place appropriate legends on periods covered by the certificates representing financial statements appearing in the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.Prospectus;
(lt) Neither the Company, the Subsidiary, nor The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected to cause or cause, result in, or constitute, stabilization or manipulation of the price of the shares of Class A Common Stock to facilitate the sale or resale of any securities of the Company.Shares;
(mu) 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 promptly notify 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 ceases to be as of a date more than thirty (30) days an Emerging Growth Company at any time prior to the date later 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, time when a prospectus relating to the offering and sale or entry into any agreement to grant, issue or sell any option, warrant of the Class A Common Stock or other contract right securities relating thereto is not required by the Act to be delivered (xwhether physically or through compliance with Rule 172 under the Act or any similar rule) 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.Lock-Up Period; and
(v) For a period of five (5) years after the effectiNei
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 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 Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall become effective, if it has not previously have been advised already become effective, and furnished with a copy, or to which the Representative shall have objected 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 (i) when of the time and date of any filing of any post-effective Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when 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.
(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 any state securities commission 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 fifth 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 at the time the Registration Statement becomes effective, whether or not Shares and for 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 a reasonable amount period of time prior to such proposed filing or use, thereafter 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 Prospectus 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 is required later of (i) the completion of the distribution of the Shares pursuant to be delivered 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 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 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.
(ge) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs and the Rule 462 Registration Statement, if any, and ending not later than
(ninety (90f) days in During the event that the end of such fiscal quarter is the end of the Company's fiscal year)Prospectus Delivery Period, the Company shall make generally available will file all documents required to its security holdersbe filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner specified in Rule 158(b) of and within 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 time periods required by the Exchange Act.
(g) If this Agreement shall terminate or shall be terminated after execution pursuant to clauses (iv) or (v) of Section 11 hereof, covering a period or if this Agreement shall be terminated by the Underwriters because of at least twelve (12) consecutive months after any inability, failure or refusal on the effective date part of the Registration StatementCompany 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.
(h) During a period of five (5) years after the date hereof, the The Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to apply the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income net proceeds from the sale of the Company for each quarter Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedProspectus.
(i) The If Rule 430A under the Act is employed, the Company will maintain a transfer agent timely file the Prospectus or term sheet ("Transfer Agent"as described in Rule 434(b) and, if necessary under the jurisdiction of incorporation of Act) pursuant to Rule 424(b) under the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockAct.
(j) The Company will furnish to For a period of 90 days after the Representative or on the Representative's orderdate of this Agreement, 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 Statementyour prior written consent, 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, (i) directly or indirectly, issue, offer to sell, sell, grant an option for the sale offer or purchase of, assign, transfer, pledge, hypothecate contract to sell or otherwise encumber or dispose of or transfer any shares of Common Stock or securities convertible into, exercisable into or exchangeable or exercisable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant collectively, “Company Securities”) or any rights to Rule 144 purchase Company Securities, or file any registration statement (other than an amendment to the 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 Rules and Regulations foregoing or otherwise(ii) enter into any swap or dispose of any beneficial interest therein without the prior consent of the Representatives (collectivelyother agreement that transfers, 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 in whole or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose ofin 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 or any optionsupon the exercise of options outstanding as of the date hereof under such stock plans, rights or warrants with respect to any (D) for 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 Stock issuable upon conversion of the Company's ledgers’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) Neither the Company, the Subsidiary, nor The Company will not at any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will taketime, directly or indirectly, take any action designed todesigned, or which might in the future 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 securities of the CompanyShares.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, will timely file with NASDAQ all documents 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 notices required by the CompanyNASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(n) The Company shall timely file all such reportsengage and maintain, forms or other documents as may be required (including, but not limited toat its expense, a Form SR as may be required pursuant to Rule 463 transfer agent and, if necessary under the Act) from time to time, under jurisdiction of its incorporation or 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 rules 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 (any national securities exchange on 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 is listed, a registrar (which, if permitted by applicable laws and rules may be quoted on Amex and, the same entity as the transfer agent) 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 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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(vi) 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 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(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 thirteen (1213) 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 12 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 shares of Common Stock securities or any options, rights or warrants with respect to any shares of Common Stocksecurities. 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) The 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) The 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 AMEX and, for a period of five seven (57) years from the date hereof, use its best efforts to maintain the Amex 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 of twenty-four (24) months after the lesser of (i) five (5) years from the effective date hereof, and (ii) the sale to the public of the Representative's SecuritiesRegistration Statement, the Company will shall not take restate, amend or alter any action term of any written employment, consulting or actions which may prevent similar agreement entered into between the Company and any officer, director or disqualify the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act key employee as of the Representative's Securities.
(v) For a period of five (5) years after the effectieffect
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 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus Statement has been filed in accordance with said Rule 430A become effective and when any post-effective amendment 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 becomes effective; Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iiiv) 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 any state securities commission shall enter a stop order or suspend such qualification at any timeexecution and delivery of this 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 fifth 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 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 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 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 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) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the Provisions of Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in and the event that Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 the period of five (5) ending three years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD or any securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(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 If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a transfer agent ("Transfer Agent"termination under Section 11 hereof) andor if this Agreement shall be terminated by the Underwriters because of any inability, if necessary under failure or refusal on the jurisdiction of incorporation part of the CompanyCompany or the Selling Shareholders to perform any agreement herein or to comply with any of the terms or provisions hereof, a Registrar the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (which may be including travel expenses and fees and expenses of counsel for the same entity as the Transfer AgentUnderwriters but excluding wages and salaries paid by you) for its Common Stockreasonably incurred by you in connection herewith.
(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 payable to it from the sale of the Securities in Shares for the manner, and subject to the conditions, purposes 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.
(nk) The If Rule 430A under the Act is employed, the Company shall will 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 the Prospectus pursuant to Rule 463 424(b) 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.
(ql) 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) 120 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 commencement of the public offering price of the Shares set forth herein and by 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 SecuritiesUnderwriters, the Company shall will not, without the prior written consent of the Representative and Underwriters' Counsel▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, issueInc., directly sell, contract to sell or indirectlyotherwise dispose of any Common Shares or rights to purchase any Common Shares, any press release or other communication or hold any press conference with respect except (i) to the Company or its activities or Underwriters pursuant to this Agreement, (ii) upon the offering contemplated herebyexercise of currently outstanding warrants and options, other and (iii) not more than trade releases 400,000 Common Shares to be issued in connection with the ordinary course 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 Company's business consistent with past practices with respect to public offering of the Company's operationsShares by the Underwriters.
(um) For a period equal Prior to the lesser of (i) five (5) years from Closing Date or the date hereofAdditional Closing Date, and (ii) as the sale to the public of the Representative's Securitiescase may be, the Company will not take furnish to you, as promptly as possible, copies of 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 quarterly unaudited interim consolidated financial statements of the Representative's SecuritiesCompany and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(vn) For a period The Company will comply with all provisions of five any undertakings contained in the Registration Statement.
(5o) years after The Company will timely file with the effectiNational 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 traded 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 practicable possible thereafter; and it will not 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 under Rule 424(b) of the Rules and 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 Exchange Act before termination of the offering of the 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 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 Representatives promptly of any request of the notice in writing (i) when the Registration Statement, as amended, becomes effective, if the provisions Commission 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 effective; (ii) or for supplement to the Prospectus or for any additional information, 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 any state securities commission 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 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 Representatives in connection with the offering of the Securities which differs from the corresponding prospectus on file at the 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 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, 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 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 the Underwriters copies of shall make such amendment or supplement as soon as available and changes in any such quantities document as the Underwriters upon advice of counsel may reasonably request.
(gf) As The Company will make generally available to its shareholders, as soon as practicableit is practicable to do so, 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 15 months after the effective date of the Registration Statement.
, an earnings statement (hwhich need not be audited) During in reasonable detail, covering a period of five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 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 Rule 158 of the Rules and Regulations thereunder and will advise the Representatives, and such of the Underwriters which request the foregoing from the Company, in each case as soon as available and in writing when such quantities as the Representative may requeststatement has been so made available.
(kg) On or before the effective date of the Registration Statement, the The Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to whichwill, for a period of twelve (12) months three years from the effective date Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Registration StatementCompany to its shareholders or filed with any securities exchange or interdealer quotation system pursuant to the 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 Representatives similar information with respect to significant subsidiaries, each of as that term is defined in the Rules and Regulations, which are not consolidated in the Company's stockholders and holders financial statements.
(h) No offering, sale or other disposition by the Company of any Common Shares or any other class of securities exchangeable or exercisable for warrants or convertible into shares options to purchase any class of Common Stock agrees that it 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 he or she will notthe latest Option Closing Date, directly or indirectly, issue, offer to sell, sell, grant an option for the sale otherwise than hereunder 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 with the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectlyRepresentatives.
(i) 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 shares rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock Shares has been or any optionsis likely to be materially affected (regardless of whether such rumor, rights publication or warrants with respect event necessitates a supplement to any shares or amendment of Common Stock. On or before the Closing DateProspectus), the Company shall deliver instructions will, after written notice from you advising the Company to the Transfer Agent authorizing it 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 place appropriate legends you, responding to or commenting on such rumor, publication or event.
(k) The Company shall cause the certificates representing Shares to be included in the securities subject to Nasdaq National Market and shall comply with all applicable rules of the Lock-up Agreements and to place appropriate stop transfer orders on Nasdaq National Market in connection with the Company's ledgerstransactions contemplated hereby.
(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) The Company will not take, directly or indirectly, any action designed to, or which has constituted, or which might in the future reasonably be expected to to, cause or result in, in stabilization or manipulation of the price of any securities the Common Shares 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 and 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, time under the Act, the Exchange Act, Securities Act and the Rules and RegulationsRegulations and the Exchange Act and the rules and regulations promulgated thereunder, and all of 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 Regulationsthose acts.
(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 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 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 Exchange Act before termination of the offering of the 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 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 (i) when the Registration Statement, as amended, becomes effective, 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 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 becomes effective; Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iiiv) 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 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 and any state securities commission 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 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 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 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 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 Act, the Company will notify the Representative promptly and prepare and file with Act or any other law. If at any time the Commission an appropriate amendment or supplement in accordance with Section 10 of shall issue any stop order suspending 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectiveness of the Registration Statement, the Company shall provide will make every reasonable effort to obtain the Representative with true original withdrawal or lifting of such order at the earliest possible time.
(b) The Company will furnish to you, without charge, two conformed 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 StatementStatement as originally filed with the Commission and of each amendment thereto, each including financial statements and all exhibits thereto, and will also furnish to you, without charge, such additional number 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 conformed copies of the Registration Statement, the Company shall not, without the prior written consent Statement as originally filed and 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 ledgerseach amendment thereto as you may reasonably request.
(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.
(mc) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject will not file any Rule 462(b) Registration Statement or any amendment to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly Registration Statement or indirectly, to acquire make any securities issued by the Company.
(n) The Company shall timely file all such reports, forms amendment 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 supplement 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, Prospectus or any Prepricing Prospectus unless (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 you 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 effectihave 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) 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 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 Exchange Act before termination of during any time that a prospectus relating to the offering of securities is required to be delivered under the Shares by the Underwriters Securities Act of which the Representative and Underwriters' Counsel shall not previously have been advised and furnished with a copycopy a reasonable period of time prior to the proposed filing, or to which the Representative shall have reasonably objected 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 writing, (i) when the Registration Statement, as amended, becomes effectiveeffective 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, or the 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 best efforts to prevent the issuance of any stop or suspension order and if the Commission or any state securities commission authority 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 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 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 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 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 five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 effectithe
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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission 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 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 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 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 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 five seven (57) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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
(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 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(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 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 thirteen (1213) 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 (except for the holders of the Company's 10% Convertible Subordinated Notes Due September 30, 2000) 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 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 shares of Common Stock or any options, rights or warrants with respect to any shares of Common StockStock except pursuant to (i) options granted and available to be granted pursuant to the Company's 1997 Incentive and Stock Option Plan and (ii) warrants issued in connection with the sale of the Company's Series A 1998 10% Notes. In the case of the holders of the Company's 10% Convertible Subordinated Notes Due September 30, 2000, the Lock-up Agreement shall be for a period of 12 months following the effective date of 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 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(j6(k) and 6(l) hereof.
(p) The Company shall cause the Common Stock to be quoted on Amex and, for a period of five seven (57) 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 seven (57) years.
(s) The Company hereby agrees that it will not, for a period of twelve thirteen (1213) 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 aggregate 500,000 shares reserved for future issuance under the Company's 1997 Incentive and Stock Option Plan; (iii) the payment for such securities with any form of consideration other than cash; or (iiiiv) 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 effectiS
Appears in 1 contract
Sources: Underwriting Agreement (Norton Motors International 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 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 Exchange Act before termination of the offering of the 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 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 writing, (i) when the Registration Statement, as amended, becomes effective, 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 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 any state securities commission authority 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 fifth 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 which differs from the corresponding prospectus on file at the 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 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 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; 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 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 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) 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) 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 RepresentativeRepresentatives, 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, stockholders annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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 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, affairs which was released or prepared by or on behalf of the Company; and
(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 seven-year five (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(ies) 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 ("Transfer Agent") 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 Representatives or on the Representative's Representatives' order, without charge, at such place as the Representative 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 Representatives may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative Representatives with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, which for a period of twelve (12) months from the effective date of the Registration Statement, each Statement all officers and directors of the Company's stockholders Company and all holders of shares of the Common Stock of the Company or securities exercisable or exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she issued and outstanding will not, directly or indirectly, issue, not 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 such 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 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. During the twelve (12) month period commencing with 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, 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) shares of Common Stock issuable upon exercise of outstanding stock options, and (ii)________ shares of Common Stock reserved for future issuance under the Company's 1999 Performance Equity Plan. During the twelve (12) 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.
(l) Neither the Company, the Subsidiary, nor any of their respective 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 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 or any securities of Enviro-Clean of America, Inc. The Company agrees that for a period of eighteen (18) months, it will not permit any subsidiary of the Company to purchase, redeem or otherwise acquire or retire for value any equity securities of 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 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 letter to be furnished pursuant to Sections 6(jSection 6(i) hereof.
(p) The Company shall cause the Common Stock to be quoted on Amex and, Nasdaq or a National Securities exchange and for a period of five seven (57) years from the date hereof, and use its best efforts to maintain the Amex 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 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.
(r) As soon as practicable, (i) but in no event more than five (5) business 30 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 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 five seven (57) years.
(s) The Company hereby agrees that it will not, 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 sale of any option, warrant shares of Common Stock or other contract right securities of the Company (xi) in an amount greater than an aggregate of 2,000,000 shares of Common Stock, (ii) at an exercise or sale price that is per share less than the greater of the public offering price of the Shares set forth herein and the fair market value of the Common Stock on the date of grant or sale or sale, (yiii) to any direct or indirect beneficial holder on the date hereof of its executive officers or directors or to any holder of 5more than 10% or more of the issued and outstanding shares of Common Stock; , (iiiv) with the payment for such securities with any form of consideration other than cash; , (v) upon payment of less than the full purchase or (iii) exercise price for such shares of Common Stock or other securities of the existence of stock appreciation rights, phantom options or similar arrangementsCompany.
(t) Until the completion of the distribution of the SecuritiesShares, and for 25 days thereafter, the Company shall not, not without the prior written consent of the Representative 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.
(u) For a period equal to the lesser of (i) five seven (57) years from the date hereof, and (ii) the sale to the public of the Representative's SecuritiesRepresentatives' 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 Securities.
(v) For a period of five (5) years after the effectiCompan
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as followsMP Securities:
(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 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 MP Securities is given a copy of such proposed amendment or file any document under the Act or Exchange Act before termination of the offering of the Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copysupplement; to advise MP Securities, or to which the Representative shall have objected 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 promptly after 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, 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 initiationuse of any Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the threatening, initiation or 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 any state securities commission 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 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 To furnish MP Securities which differs from the corresponding prospectus on file at the 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 the Prospectus in such amendment or supplement a reasonable amount of time prior to such proposed filing or use, quantities as the case MP Securities 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 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 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 MP Securities and upon MP Securities’ request to prepare and furnish without charge to MP Securities as many copies as MP Securities 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 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, this Agreement in the manner specified in Rule 158(bthe Prospectus under the caption “Use of Proceeds”;
(d) There has been no material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, in the earnings, business or operations of the Rules Company and Regulationsits subsidiaries, taken as a whole, except as set forth in the Prospectus;
(e) There are no 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 Representative, an earnings statement which will be offering and sale of the Notes and the application of the proceeds thereof as described in the detail Prospectus, the Company will not be required byto 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 it owns and all mortgage notes and debt securities it owns which are material to its business, taken as a whole. In each case, the Company has ownership free and clear of all liens, encumbrances and defects except those which do not materially affect the value of such property and do not materially interfere with the use made, and will otherwise comply withproposed to be made, 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 such property by the ActCompany; and (ii) any real property and buildings held under lease by the Company are held by it under valid, covering a period 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 at least twelve (12) consecutive months after such property and buildings by the effective date of the Registration Statement.Company;
(h) During 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 period material adverse effect on the Company, taken as a whole; and no officer or representative of five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports has received any notice of earnings, and will deliver proceedings relating to the Representative: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) concurrently with furnishing such quarterly reports to its stockholders, The consolidated financial statements of income of the Company for each quarter and the related notes thereto included in the form furnished to Registration Statement and the Company's stockholders Prospectus comply in all material respects with the applicable requirements of the 1933 Act and certified by the Company's principal related rules and regulations of the Commission; present fairly in all material respects the financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet position of the Company and its consolidated subsidiaries as at the end of the preceding fiscal year, together with statements dates indicated and the results of operations, stockholders' equity, operations and cash flows of the Company and its consolidated subsidiaries for such fiscal year, accompanied by the periods specified; and have been prepared in conformity with U.S. generally accepted accounting principles applied on a copy of consistent basis throughout the certificate thereon of independent certified public accountants;
periods covered thereby (iii) except 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 Companynoted therein); and
(vik) any additional information of a public nature concerning No relationship, direct or indirect, exists between the Company (or any of its owners, managers, directors, officers, employees, representatives, or agents that is required by the 1933 Act to be described in the Prospectus and any future subsidiary) or its businesses which the Representative may request. During such 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(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" 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 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 1 contract
Sources: Managing Participating Broker Agreement (Ministry Partners Investment Company, LLC)
Covenants and Agreements of the Company. The Company covenants and agrees with each the several Underwriters participating in the offering of the Underwriters as followsUnderwritten Securities that:
(a) The Company shall use its best efforts to cause Promptly following the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date execution of the Registration Statementapplicable Terms Agreement, file any amendment to the Registration Statement or supplement to Company will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or file any document under the Act or Exchange Act before termination applicable Warrant Agreement, if any, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities that each severally has agreed to purchase, the names of the Shares Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters of which from the Representative shall not previously have been advised and furnished with a copyCompany, or to which the Representative shall have objected or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.the
(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, 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) you promptly after it learns 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 any proceedings for that purpose; (iii) , 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 you promptly of the issuance by transmittal to the Commission or by any state securities commission for filing of any proceedings for Prospectus Supplement or other supplement or amendment to the suspension of Prospectus or any document to be filed pursuant to 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) 1934 ▇▇▇. ▇he Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information.
(c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement.
(d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any timeProspectus, 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 whether pursuant to the Representative) 1933 Act, 1934 Act 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 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 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)otherwise, and will furnish the Representative you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may befiling, and will not file any such prospectus amendment or supplement or other documents in a form to which you or counsel for the Representative Underwriters shall reasonably object in writing or ▇▇▇▇▇▇which is not in material compliance with the 1933 Act, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' Counsel") shall objectthe 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations as applicable.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will deliver to the time each Underwriter a signed copy of the Registration Statement becomes effective, as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to qualify the Securities for offering and sale Item 12 of Form S-3 under the securities laws of 1933 ▇▇▇) ▇▇d will also deliver to 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.Underwriter a
(f) During The Company will furnish to each Underwriter, from time to time during the time period when a prospectus the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the 1933 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 1934 Act or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. 1934 Act Regulations.
(g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the Act, 1933 Act or the 1934 Act any event shall have occurred relating to or affecting the Company 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Representative promptly Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise.
(h) The Company will cooperate with the Underwriters to enable the Underwritten Securities, the Warrant Securities, if any, and the Common Stock issuable upon conversion of the Preferred Stock or the Depositary Shares, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate after consultation with the Company and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten Securities, the Warrant Securities, if any, and the Common Stock issuable upon conversion of the Preferred Stock or the Depositary Shares, if any, 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 ActUnderwritten Securities, each such amendment or supplement to be satisfactory to Underwriters' Counselthe Warrant Securities, if any, and the Company will furnish Common Stock issuable upon exercise of the Warrant Securities, if any, and the Common Stock issuable upon conversion of the Preferred Stock or the Depositary Shares, if any, to the Underwriters copies of continue such amendment or supplement as soon as available and qualifications in such quantities effect for so long a period as the Underwriters may request.reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities, the Warrant
(gi) As With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event not no later than forty-five (45) 90 days after the end close 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 Representativecovered thereby, an earnings statement which (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) that will be in the reasonable detail required by, (but which need not be audited) and that will otherwise comply with, the provisions of with Section 11(a) of the 1933 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 months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (12as defined in said Rule 158) consecutive months after the effective date of the Registration Statement.
(hj) 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 five (5) three years after from the date hereof, the Company will furnish deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, shareholders; and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholdersyou, 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 as soon as they are available, copies of any other reports to its stockholders, a balance sheet of (financial or other) which the Company shall publish or otherwise make available to any of its security holders as at the end of the preceding fiscal year, together with statements of operations, stockholders' equitysuch, 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 any reports and financial statements furnished to or filed with the Commission, the NASD Commission or any national securities exchange;
(v) every press release and every material news item or article of interest to . In the financial community in respect of the Company, or its affairs, which was released or prepared by or on behalf of the Company; and
(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 seven-year period, if event 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(ies) subsidiaries are consolidated, and will be accompanied by similar consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for any all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under subsidiaries as defined in 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 request1933 Act Regulations.
(k) On or before The Company will use 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 net proceeds received by it from the effective date sale of Underwritten Securities in all material respects consistent with the Registration Statement, each description thereof in the Prospectus under "Use 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 Proceeds."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 will use its best efforts to continue to meet the Company, requirements to qualify as a "real estate investment trust" under the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within Code for the meaning taxable year in which sales of the Rules and Regulations) will take, directly Underwritten Securities have occurred or indirectly, any action designed to, or which might in the future reasonably be expected are to cause or result in, stabilization or manipulation of the price of any securities of the Companyoccur.
(m) The Company shall apply Company, during the net proceeds from period when the sale Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Securities in Underwritten Securities, will file promptly all documents required to be filed with the mannerCommission pursuant to Section 13, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion 14 or 15 of the net proceeds will be used, directly or indirectly, to acquire any securities issued 1934 Act within the time periods prescribed by the Company1934 Act and the 1934 Act Regulations.
(n) The Company shall timely file all such reportswill not, forms for 90 days from the date of the applicable Prospectus Supplement, except with your prior written consent, offer, sell, contract to sell or otherwise dispose of any of its debt or equity securities or register for sale under the 1933 Act any of its debt or equity securities, other documents as may be required (including, but not limited to, a Form SR as may be required than pursuant to Rule 463 under this Agreement, employee benefit plans existing on the Act) from time date of this Agreement and conversion or exercise of securities outstanding on the date of this Agreement. The Company further agrees that it will cause its officers and directors to time, under observe a similar restriction respecting securities of 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 RegulationsCompany owned by them.
(o) The If the Preferred Stock or Depositary Shares are convertible into Common Stock or if Common Stock Warrants are issued, the Company shall furnish will reserve and keep available at all times, free of preemptive or other similar rights, a sufficient number of shares of Common Stock or Preferred Stock, as the case may be, for the purpose of enabling the Company to the Representative as early as practicable prior satisfy, any obligations to each issue such shares upon conversion of the date hereofPreferred Stock or the Depositary Shares, as the Closing Date and each Option Closing Datecase may be, if any, but no later than two (2) full business days prior thereto, a copy or upon exercise 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) hereofCommon Stock Warrants.
(p) The Company shall cause If the Preferred Stock or Depositary Shares are convertible into Common Stock or if the Common Stock to be quoted on Amex andWarrants are exercised, for a period of five (5) years from the date hereof, Company will use its best efforts to maintain list the Amex quotation shares of Common Stock issuable upon conversion of the Preferred Stock or Depositary Shares or upon exercise of the Common Stock to Warrants on the extent outstandingNew York Stock Exchange or such other national exchange on which the Company's shares of Common Stock are then listed.
(q) For a period of five (5) years from the Closing Date, the 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 has complied and will comply with all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales provisions of Florida H.B. 1771, Section 1, 117,130 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 Florida 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 hereofInvestors Act, and (ii) the sale all regulations thereunder relating 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 Securitiesissuers doing business with Cuba.
(v) For a period of five (5) years after the effecti
Appears in 1 contract
Sources: Underwriting Agreement (American Health Properties 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 Statement and any amendments thereto to become effective 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 Exchange Act before termination of the offering of the 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 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 such advice in writing (i) when the Registration Statement, as amended, becomes effective, if Statement has become effective and 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 of the Rules and Regulations is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) of the Rules and Regulations, (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, taken as a whole, or of the occurrence 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, the Rules and Regulations or any other applicable law. If at any time the Commission or shall issue any state securities commission shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every effort use its commercially reasonable efforts 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 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 Rules and Regulations before the close of business on the second 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 with the Commission and of each amendment thereto, including financial statements and all exhibits 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 the Rules and Regulations 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 fifth 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 Underwriters and obtain your consent prior to filing any of those with the Commission; provided, however, that such consent will not be required if the Company proposes for use by has determined based on the Underwriters in connection with the offering advice of the Securities which differs from the corresponding prospectus on file at the Commission at the time the Registration Statement becomes effectivecounsel that such amendment, whether supplement or not such revised prospectus other filing 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 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 objectby law.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior will not make any offer relating 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 Common Stock 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 qualificationwould constitute an Issuer Free Writing Prospectus without your prior consent.
(f) During the time when a prospectus is required to be delivered under the Act, the The Company shall use all reasonable efforts to comply will retain in accordance with all requirements imposed upon it by the Act and the Exchange Act, as now Rules and hereafter amended Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the 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 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 by 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, prior to the date of the Prospectus, by the several Underwriters and by dealers of each Preliminary Prospectus so furnished by the Company, in accordance with the provisions of the Act, the Rules and Regulations and the securities or Blue Sky laws of the jurisdictions in which the Shares are offered.
(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 or the Rules and Regulations 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) by the several Underwriters and by all dealers to whom Shares may be sold in accordance with the provisions of the Act, the Rules and Regulations and the securities or Blue Sky laws of the jurisdictions in which the Shares are offered, 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 and the Rules and Regulations 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 and (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 of the Rules and Regulations, any event shall occur that in the judgment of the Company or in the reasonable 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 Act, the Rules and Regulations or any other applicable law, the Company will notify the Representative promptly and prepare and and, subject to Section 5(a) 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 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.
(gi) As soon 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 practicable, but 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 event jurisdiction where it is not later now so qualified or to take any action that would subject it to general service of process in suits, other than forty-five (45) days after the end those arising out of the 12-month period beginning on the day after the end offering or sale of the fiscal quarter of Shares, as contemplated by this Agreement and the Company during which the effective date of the Registration Statement occurs (ninety (90) days Prospectus, in any jurisdiction where it is not now so subject. In the event that the end of such fiscal quarter is the end qualification of the Company's fiscal year)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, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which will need not be in audited, covering a 12-month period commencing after the detail required byEffective Date and ending not later than 16 months thereafter, and will otherwise comply withas soon as reasonably practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and 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.
(hk) During a the period of ending five (5) 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, a copy of each proxy statement, quarterly or annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income report or other report 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 stockholders or filed with the Commission, FINRA, the NASD Nasdaq Stock Market (“NASDAQ”) or any other national securities exchange;
exchange and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time such other information of a public nature concerning the Company as you may reasonably request. For purposes of this Section 5(k), the Company shall be deemed to have furnished the required information if such documents have been filed on ▇▇▇▇▇.
(and l) If this Agreement shall terminate or shall be terminated after execution pursuant to any future subsidiaryprovision hereof (except pursuant to a termination under Section 14 hereof) or its businesses which if this Agreement shall be terminated by the Representative may request. During such seven-year periodUnderwriters because of any inability, if failure or refusal on the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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 its subsidiary(iesthe other Underwriters, other than any defaulting 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 or the other Underwriters) are consolidated, and will be accompanied reasonably incurred by similar financial statements for any significant subsidiary which is not so consolidatedyou or the other Underwriters in connection herewith.
(im) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary 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 jurisdiction caption “Use of incorporation of Proceeds” in the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common StockProspectus.
(jn) The Company will furnish to the Representative or For a period commencing on the Representative's order, without charge, at such place as date hereof and ending on the Representative may designate, copies 180th day after the date of each Preliminary Prospectus, the Registration Statement and any preProspectus (the “Lock-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibitsUp Period”), 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(i) offer, offer sell, contract to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate pledge or otherwise encumber or 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, exercisable into or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either other than Common Stock issued pursuant to Rule 144 of the Rules and Regulations employee benefit plans, equity plans 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 other employee compensation plans existing on the effective date of hereof or as contemplated in the Registration Statement, Time of Sale Information and the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distributeProspectus, or otherwise dispose ofupon the exercise of any stock options, directly warrants or indirectlyrights, any shares or vesting of Common Stock restricted stock, restricted stock units or any other equity awards, in each case outstanding on the date hereof or as contemplated in the Registration Statement, Time of Sale Information and the Prospectus), 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, restricted stock units, restricted stock or any other equity award pursuant to any equity plans existing on the date hereof or as contemplated in the Registration Statement, Time of Sale Information and the Prospectus) (collectively, the “Company Securities”), (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 shares of Common Stock, whether any such transaction described in clause (i) or (ii) 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 Company Securities (other than any registration statement on Form S-8) or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. on behalf of the Underwriters. On or before Notwithstanding the Closing Dateforegoing, if (x) during the last 17 days of the Lock-Up Period, the Company shall deliver instructions issues an earnings release or announces material news or a material event relating to the Transfer Agent authorizing it Company occurs or (y) prior to place appropriate legends on the certificates representing the securities subject to expiration of the Lock-up Agreements and to place appropriate stop transfer orders Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the Company's ledgers.
last day of the Lock-Up Period, then the restrictions imposed in this 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 Representatives, on behalf of the Underwriters, waive such extension in writing; provided, however, that such extension of the Lock-Up Period shall not apply if (li) Neither at the Companyexpiration of the Lock-Up Period, the Subsidiary, nor any shares of their respective officers, directors, stockholders, nor any of their respective affiliates Common Stock are “actively traded securities” (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might as defined 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 Regulation M 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 (ii) the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Act, Securities Act in the Exchange Act, and manner contemplated by the Rules and RegulationsNASD Rule 2711(f)(4) of the FINRA Manual.
(o) The Company shall furnish to the Representative as early as practicable prior to each If ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., on behalf of the date hereofUnderwriters, agrees to release or waive the Closing Date restrictions contained in any Lock-Up Agreement referred to in Section 11(k) below for an officer or director of the Company, except where the release or waiver is effected solely to permit a transfer of securities that is not for consideration and each Option Closing Datethe transferee has agreed in writing to be bound by the same terms of the Lock-Up Agreement in place of the transferor (a “Lock-Up Release”), if anyand ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, but no later than two (2) full Inc. provides the Company with notice of such Lock-Up Release at least 3 business days prior theretoto its effective date, 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, then the Company shall furnish to the Representative issue a press release through a major news service 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) least two business days before the effective date of such Lock-Up Release containing substantially the Registration Statementfollowing: Great White Energy Services, file a Form 8-A with Inc. (the Commission providing for the registration under the Exchange Act of the Securities and (ii“Company”) 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 announced today that ▇▇▇▇▇'▇▇ OTC Manual ▇▇▇▇▇, a book-running managing underwriter in the Company’s recent initial public offering of shares of common stock, is releasing a lock-up restriction with respect to shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the Company. The release will take effect on , 2011, and to continue the shares may be sold on or after such inclusion for a period of not less than five (5) yearsdate.
(sp) 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 Prior to the Company Closing Date or its activities or Additional Closing Date, as 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 Securitiescase may be, the Company will not take furnish to you, as promptly as practicable, copies of 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 unaudited interim consolidated financial statements of the Representative's Securities.
(v) For a Company and the Subsidiaries for any period of five (5) years after subsequent to the effectiperiods covered by the financial stat
Appears in 1 contract
Sources: Underwriting Agreement (Great White Energy Services, 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 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 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 Exchange Act before termination of during any time that a prospectus relating to the offering of securities is required to be delivered under the 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 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 writing, (i) when the Registration Statement, as amended, becomes effectiveeffective 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, or the 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 any state securities commission authority 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 fifth 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 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 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 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 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.
(gf) As soon as practicable, but in any event not later than forty-five (45) 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 (ninety (90) 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 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 Securities Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Securities Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(hg) During a the three-year period of five (5) 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 reports 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 cash flows, for such period and its unaudited quarterly reports balance sheet as of earningsthe end of such period. In addition, and during the three-year period commencing on the date hereof, the Company will deliver to the Representative:
(i1) concurrently with furnishing such quarterly reports to its stockholders, statements of income summary financial information of the Company 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;
(ii2) 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, equity and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate report thereon of the Company's independent certified public accountants;
(iii3) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv4) 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;
(v5) 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, 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
(vi6) 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 seventhree-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(ies) subsidiaries are consolidatedrequired to be consolidated under GAAP, and will be accompanied by similar financial statements for any significant subsidiary which that is not so consolidated.
(ih) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under for the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(ji) 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.
(kj) 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 duly executed and to place appropriate stop transfer orders on delivered by the Company's ledgersofficers, directors, stockholders and persons holding warrants, options, rights or other securities of the Company.
(lk) Neither the Company, the Subsidiary, nor any of their respective 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.
(ml) The Company shall apply the net proceeds from the sale of the Securities Shares in substantially the manner, and subject to the conditions, set forth under "Use of Proceedsproceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(nm) The Company shall shall, until December 31, 2006, 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 Securities Act, the Exchange Act, 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, Act and the Rules and Regulations.
(on) 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) 30 days prior to the date of the Registration Statement) which that have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections Section 6(j) hereof. The foregoing information shall be kept confidential by the Representative.
(po) 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 reasonable best efforts to maintain the Amex quotation American Stock Exchange listing of the Common Stock to the extent outstanding.
(qp) For a period of five (5) two years from the Closing Date, the Company shall furnish cause to be furnished to the Representative directly from the Company's transfer agent, 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 . Such consolidated transfer sheets shall be furnished to the CompanyRepresentative daily for 60 days following the Closing Date, and weekly beginning on the 61st day following the Closing Date.
(rq) As soon as practicable, (i) but in no event more than five (5) business Within 30 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 from the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions descriptions and ▇▇▇▇▇'▇ OTC Manual and endeavor to continue such inclusion for a period of not less than five (5) yearsyears from the effective date of the Registration Statement.
(sr) The Except as contemplated by the Warrant Agreement, without the consent of the Representative, the Company hereby agrees that it will not, not for a period of twelve six (126) months from the effective date of the Registration Statement, adopt, adopt or propose to adopt or otherwise permit to exist any employee, officer, director, consultant or similar 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) except for up to any 600,000 shares of its executive officers or directors or Common Stock issuable upon exercise of stock options granted pursuant to any holder of 5% or more the Company's 2000 Stock Option Plan as of the Common Stockeffective 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 (iiiiv) the existence of stock appreciation rights, phantom options or similar arrangements.
(ts) Until the completion of the distribution of the Underwritten Securities, if any, the Company shall not, not without the prior written consent of the Representative and Underwriters' 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 contemplated herebyOffering, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operationsoperations that have been approved by Representative's Counsel.
(ut) For a period equal to the lesser of (i) five (5) seven years from the date hereof, hereof and (ii) the sale resale to the public of the Representative's SecuritiesWarrant Shares, the Company will not take any action or actions which may that would prevent or disqualify the Company's use by the Company of Form S-1, Form SB-2 or Form S-3 (or other appropriate formforms) for the registration under the Securities Act of the Representative's SecuritiesWarrant Shares.
(vu) For a period of five 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 (5if any) years after that the effectiCompany 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 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 Exchange Act before termination of the offering of the 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 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, 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 any state securities commission shall enter a stop order or suspend such qualification at any timeexecution and delivery of this 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 fifth 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 and for such period of time thereafter as the corresponding prospectus on file 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 Commission at later of (i) the time 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 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 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 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) As soon as practicableThe Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Commission Rule 158), but in any event which need not later than forty-five (45) days after the end of the 12be audited, covering a twelve-month period beginning on the day commencing after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, within 90 days in the event that after the end of such fiscal quarter is the end of the Company's fiscal year)period, 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 which consolidated earnings statement which will be in the detail required by, and will otherwise comply with, shall satisfy 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 1933 Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(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 five (5) beginning on the date hereof and ending three years after from the date hereof, the Company will furnish to its stockholdersyou and, as soon as practicableupon your request, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports to each of earningsthe other Underwriters, 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 a copy of all reports (financial each proxy statement, quarterly or other) annual report or other report of the Company mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to shareholders or filed with the Commission, the NASD or Nasdaq or any securities exchange;
exchange other than such reports and proxy statements not available on ▇▇▇▇▇ and (vii) every press release and every material news item or article of interest from time 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
(vi) any additional time 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 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(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 reimburse you and the Representative or on other Underwriters for all out-of-pocket expenses (including travel expenses and the Representative's orderfees and charges of counsel for the Underwriters, without chargebut excluding wages, 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 Prospectussalaries, and all amendments other overhead costs paid by you) reasonably incurred by you in connection herewith 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 requesttransactions contemplated hereby not to exceed $50,000.
(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 will apply the net proceeds from the sale of the Offered Securities to be sold by it hereunder in accordance with the manner, and subject to statements under the conditions, set forth under caption "Use of Proceeds" in the Prospectus. No portion .
(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 net proceeds 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, 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 enter into any transaction which is designed to, or might reasonably be usedexpected 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 acquire be settled by delivery of preferred stock, in cash or otherwise, or publicly announce an intention to effect any securities issued by such transaction except to the CompanyUnderwriters pursuant to this Agreement.
(n) The Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall timely file will cause to be paid the following: (i) the fees, disbursements and expenses of the 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, the Preliminary Prospectus, the Prospectus and the Incorporated Documents, including any 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 reportscopies of the Registration Statement, forms the Prospectus, each Preliminary Prospectus, the Blue Sky memoranda, the Master Agreement Among Underwriters, this Agreement, the Selected Dealers Agreement and all amendments or other documents 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 required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under review by the Act) from time to time, under NASD of the Act, fairness of the Exchange Act, terms of the sale of the Offered Securities and the Rules reasonable fees and Regulationscharges 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, and all such reportsif any, forms and documents filed will comply as to form and substance in connection with the applicable requirements under issuance and delivery of the ActOffered Securities to the respective Underwriters; (ix) all other fees, costs and expenses referred to in Item 13 of the Exchange ActRegistration Statement; and (x) the transportation, lodging, graphics and other expenses incurred by the Rules Company and RegulationsUnderwriters in preparing for and participating in the "roadshow" for the offering contemplated hereby.
(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.[Reserved]
(p) The Company shall cause will file promptly with the Common Stock SEC all documents required to be quoted on Amex andfiled with the Commission pursuant to Sections 13(a), for a period 13(c), 14 or 15(d) of five (5) years the Exchange Act, and will provide copies thereof to each of the Underwriters as provided in Section 4(i). In addition, from the date hereofhereof through the last Additional Closing Date, use its best efforts to maintain at the Amex quotation of same time the Common Stock Company makes any announcement to the extent outstandinggeneral 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 Exchange Act or with Nasdaq, the Company will furnish the information contained or to be contained in such announcement to each Underwriter and, subject to the provisions of subsections (a), (b) or (c) of this Section, will, if the Company deems 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 Company also will furnish each Underwriter with copies of all press releases or announcements to the general public concerning its results of operations or financial condition.
(q) For a period of five (5) years from From the date hereof through the last Additional Closing Date, as soon as the Company shall furnish to the Representative at the Company's sole expensehas notice, (i) daily consolidated transfer sheets relating to the Common Stockwritten or otherwise, (ii) the list of holders of all any downgrading or withdrawal of the Company's rating of any debt, asset-backed or other securities and (iii) a Blue Sky "Trading Survey" for secondary sales 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's securities prepared Company or any of its subsidiaries by counsel to the Company.
any "nationally recognized statistical rating organization" (ras defined for purposes of Rule 436(g)(2) 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 ▇) or any pending public announcement that any such inclusion for a period organization has under surveillance or review its rating of not less than five (5) years.
(s) The Company hereby agrees that it will notany debt, 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 asset-backed or other contract right (x) at an exercise price that is less than securities or the greater financial strength 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, subsidiaries (other than trade releases issued in the ordinary course an announcement with positive implications 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 hereofpossible upgrading, and (ii) the sale to the public no implication of the Representative's Securitiesa possible downgrading or withdrawal of such rating), the Company will not take any action or actions which may prevent or disqualify the Company's use immediately notify each Underwriter 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 effectisuch 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 as 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 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 Exchange Act before termination of the offering of the 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 previously approved in writing (such approval not to be unreasonably withheld or delayed) 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 prepare and file with the Representative and confirm Commission, promptly upon the notice in writing (i) when the Registration Statement, as amended, becomes effective, 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) 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 any state securities commission shall enter a stop order or suspend such qualification at any time, opinion of the Company Representatives may be necessary to enable the several Underwriters to continue the distribution of the 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 fifth 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 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 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 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 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 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) As soon The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as practicableoriginally 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 in any event not later than forty-five (45) days after without exhibits, and all amendments thereto, as the end Representatives may reasonably request. The Company will deliver or mail to or upon the order of the 12-month period beginning 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 day after the end date of the fiscal quarter 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 Company during which 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 occurs shall be borne by the Underwriters required to deliver such prospectus.
(ninety (90e) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the The Company shall will make generally available to its security holdersstockholders as soon as practicable, in but not later than fifteen (15) months after the manner specified in Rule 158(b) effective date of the Rules and Regulations, and to the RepresentativeRegistration Statement, an earnings statement which will be in the reasonable detail required by, (but which need not be audited) and which will otherwise comply with, the provisions of with 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 Securities Act, covering a period of at least twelve (12) consecutive months beginning after the "effective date date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(hf) During 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 five (5) years the Stock. The Company will advise the Representatives promptly after the date hereofCompany 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 cooperation of the Representatives use its best efforts to obtain the withdrawal thereof.
(g) The Company will furnish to its stockholders, as soon as practicable, stockholders annual reports (including containing financial statements audited certified by independent public accountants) accountants and unaudited with quarterly reports of earnings, and will deliver to the Representative:summary financial information in reasonable detail which may be unaudited.
(ih) concurrently with furnishing such quarterly reports The Company will use its best efforts to its stockholders, statements of income of list the Company for each quarter in Stock on 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
(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 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(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidatedNasdaq National Market.
(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) and registrar for its Common Stock.
(j) The Prior to filing its first six quarterly statements on Form 10-Q, the Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies have its independent auditors perform a limited quarterly review 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 requestits quarterly numbers.
(k) On or before the effective date of the Registration StatementThe Company will not offer, 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, assign, transfer, encumber, contract to sell, grant an option for the sale or to purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, derivative of or exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant including, without limitation, Common Stock of the Company which may be deemed to Rule 144 of be beneficially owned by the Company in accordance with the Rules and Regulations or otherwiseRegulations) or dispose of any beneficial interest therein without during the prior consent of 180 days after 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 this Agreement (except with prior written consent of Cowen acting alone or each of the RepresentativeRepresentatives acting jointly), sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares other than the Company's sale 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 hereunder and to place appropriate stop transfer orders on the Company's ledgersissuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus or pursuant to the Company's stock option plans described in the Prospectus.
(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 will apply the net proceeds from the sale of the Securities Stock as set forth in the manner, and subject to the conditions, set forth description under "Use of Proceeds" in the Prospectus. No portion 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 net proceeds will be used, directly or indirectly, to acquire any securities issued by Stock under the CompanySecurities Act and the Exchange Act.
(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 Prior to Rule 463 under the Act) from time to time, under the ActClosing Dates, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed Company 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 you, as early soon as practicable prior to each they have been prepared, copies 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 any unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior for any periods subsequent to the date of periods covered by the financial statements appearing in the Registration Statement) which have been read by Statement and the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereofProspectus.
(po) 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 Prior to the extent outstanding.
(q) For a period of five (5) years from the First 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 will issue no press release or other communications directly or indirectly and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel hold no press conference with respect to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before its financial condition, results of operation, business, prospects, assets or liabilities, or the effective date offering of the Registration StatementStock, 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 without your prior written consent. For a period of twelve (12) months from following 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 SecuritiesClosing Date, the Company shall not, without the prior written consent will use its best efforts to provide to you copies of the Representative and Underwriters' Counsel, issue, directly or indirectly, any each press release or other public communication or hold any press conference with respect to the Company financial condition, results of operations, business, prospects, assets or its activities or the offering contemplated hereby, other than trade releases issued in the ordinary course liabilities of the Company's business consistent with past practices with respect Company at least twenty-four (24) hours prior to the Company's operationspublic issuance thereof or such longer advance period as may reasonably be practicable.
(up) For a period equal to During 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 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 effectiend 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, 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 practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, or the NASD or any securities exchange; and (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 concerning the Company as you may reasonably request.
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 the Registration Statement and any amendments thereto to become effective as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act Acts or Exchange Act before termination of the offering of the 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 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 Underwriter and confirm the notice in writing writing, (i) when the Registration Statement, as amended, becomes effective, 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 any state securities commission 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.the
(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 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 fifth third 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 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 Underwriter with copies of any such amendment or supplement 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 Underwriter or Kramer, Levin, Naftalis, Nessen, Kami▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ran▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("Underwriters' ▇nderwriter's Counsel") ), shall reasonably 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 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.Underwriter agrees
(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 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 UnderwritersUnderwriter' 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 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 UnderwritersUnderwriter' 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) 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) 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 RepresentativeUnderwriter, 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) 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of five (5) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, 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;
(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;with
(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, affairs which was released or prepared by or on behalf of the Company; and
(vi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses which the Representative Underwriter may reasonably request. During such 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(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") 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 orderUnderwriter, without charge, at such place as the Representative 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 Prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative Underwriter may reasonably 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 SubsidiaryAdviser, nor any of their respective officers, directors, stockholders, nor any of their respective 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.
(ml) 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.
(nm) 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 1940 Act, the Exchange Act, and the Rules and Regulations.the
(on) The Company shall furnish to the Representative 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 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 Section 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.
(qo) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative Underwriter at the Underwriter's reasonable request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common StockShares, (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.
(rp) 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) 30 days after 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 Mood▇'▇ ▇▇▇▇▇'▇ OTC Manual ual and to use its best efforts to continue such inclusion for a period of not less than five seven (57) 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.
(tq) Until the completion of the distribution of the Securities, the Company shall not, not without the prior written consent of the Representative Underwriter and Underwriters' Underwriter's Counsel, issue, directly or indirectly, 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.
(vr) For a period of five three (53) years after the effectieffective date of the Registration Statement, the Underwriter shall have the right to designate one (1) individual for election to the Company's Board of Directors ("Board") and the Company shall use its best efforts to elect such individuals to the Board. In the event the Underwriter shall not have designated such individual at the time of any meeting of the Board or such person is unavailable to serve, the Company shall notify the Underwriter of each meeting of the Board and an individual designated by the Underwriter 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. 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.]
Appears in 1 contract
Sources: Underwriting Agreement (Sherry Lane Growth Fund Inc)