Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows: (a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations. (b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order. (c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement. (d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be, (e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification. (f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request. (g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative: (i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and (ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 4 contracts
Sources: Underwriting Agreement (Amcor Capital Corp), Underwriting Agreement (Amcor Capital Corp), Underwriting Agreement (Amcor Capital Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause If, at the Registration Statement time this Agreement is executed and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any timedelivered, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with it is necessary for a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Shares may commence, the Company will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective. If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b) under the Securities Act, any event occurs as a result of which the Time of Sale Information would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Company will (i) notify promptly the Representatives so that any use of the Time of Sale Information may cease until it is amended or supplemented; (ii) amend or supplement the Time of Sale Information to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Company, its affiliates or its filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (ivsuch purpose or any examination pursuant to Section 8(e) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment Securities Act relating to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date Section 8A of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Securities Act in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(bShares; (iii) of the Rules and Regulations), and will furnish receipt by the Representative with copies Company of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation notification with the Representative, at or prior respect to the time suspension of the Registration Statement becomes effective, to qualify qualification of the Securities Shares for offering and sale under in any jurisdiction or the securities laws institution or threatening of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required any proceeding for such purpose; providedand (iv) within the period of time referred to in Section 5(h) hereof, howeverof any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the ProspectusOperating Company, or any amendments subsidiaries thereof, taken as a whole, or supplements thereto. If at of any time when a prospectus relating event that comes to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result attention of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, Operating Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the ActSecurities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will notify make every reasonable effort to obtain the Representative promptly and prepare withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 Rule 424(b) under the Securities Act before the close of business on the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after first business day immediately following the date hereof. As used in this Agreement, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect “subsidiaries” shall mean all of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (wholly-owned and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts partially-owned direct and indirect subsidiaries of the Company and its subsidiary are consolidatedthe Operating Company.
Appears in 4 contracts
Sources: Underwriting Agreement (Jernigan Capital, Inc.), Underwriting Agreement (Jernigan Capital, Inc.), Underwriting Agreement (Jernigan Capital, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 3 contracts
Sources: Underwriting Agreement (Lasik America Inc), Underwriting Agreement (Lasik America Inc), Underwriting Agreement (Lasik America Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters Public Offering of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof objected, or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations. The Company will not distribute or otherwise use any issuer free-writing prospectus without the consent of the Underwriter.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice such advice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A 430A, and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution institution, or threat, of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threateningthreat, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort shall use its best efforts to obtain promptly the lifting prompt withdrawal of such the order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to the requirements of Rule 424(b)(1) (or, if applicable and if consented to by 424 under the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementAct.
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Underwriter in connection with the offering of the Securities Public Offering which differs from the corresponding prospectus Prospectus on file at with the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations)), and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriter shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may designate to permit the sales and continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended Act and by the Rules and Regulations, as from time to time in force, so far as may be necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' CounselUnderwriter’s counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriter promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthe Underwriter, and the Company will furnish to the Underwriters Underwriter copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Underwriter may request.
(g) During As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company’s fiscal year), the Company shall make generally available to its security holders, and to the Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, covering a period of three at least 12 consecutive months after the effective date of the Registration Statement.
(3h) years The Company will furnish to the Underwriter, without charge, at such place as the Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriter may request.
(i) On or before the effective date of the Registration Statement, the Company shall provide the Underwriter with copies of duly executed, and enforceable agreements pursuant to which, for a period of 12 months from the effective date of the Registration Statement, the officers, directors and employees of the Company and certain holders of shares of Common Stock designated by the Underwriter agree that it or he or she will not directly or indirectly, sell or otherwise dispose of such Common Stock beneficially owned by them (aggregating not less than 5,793,111 shares of Common Stock)without the prior written consent of the Underwriter (the “Lock-up Agreements”). On or before the Initial Closing, the Company shall deliver instructions to the Transfer Agent for its Common Stock to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company’s ledgers.
(j) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under “Use of Proceeds” in the Prospectus.
(k) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, pursuant to Rule 463 under the Act) from time to time under the Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(l) The Company shall furnish to the Underwriter as soon as practicable prior to each of the date hereof, the date of the Initial Closing and of each Additional Closing, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company will furnish which have been read by the Company’s independent public accountants, as stated in its letter to its stockholders, be furnished pursuant to Section 5(h) hereof.
(m) The Company shall as soon as practicable, each annual report (including financial statements audited by independent public accountants)i) but in no event more than five (5) business days before the effective date of the Registration Statement, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, file a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-KA with the Commission providing for the registration of the Securities under the Exchange Act.
(n) Until the completion of the distribution of the Units, including the Company shall not without the prior written consent of the Underwriter, issue, directly or indirectly, any amendment thereto, and will promptly deliver a copy of each such report press release or other communication or hold any press conference with respect to the Representative and will deliver to Company or its activities or the Representative:
(i) every press release and every material news item or article of interest to offering contemplated hereby, other than any trade releases issued in the financial community in respect ordinary course of the Company, or its affairs which was released or prepared by or on behalf of ’s business consistent with past practices with respect to the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated’s operations.
Appears in 3 contracts
Sources: Underwriting Agreement (Lightspace Corp), Underwriting Agreement (Lightspace Corp), Underwriting Agreement (Lightspace Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives is necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the 12 Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly and prepare and file such prospectus or prospectuses as may be necessary to permit compliance with the Commission an appropriate amendment or supplement in accordance with requirements of Section 10 10(a)(3) of the Securities Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gd) During The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-Effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a period prospectus relating to the Stock is required under the Securities Act, as many copies of three the Prospectus, in final form or as thereafter amended or supplemented, as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (39) years months or more after the effective date hereof, of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will furnish make generally available to its stockholders, stockholders as soon as practicable, each annual report but not later than fifteen (including financial statements audited 15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by independent public accountants), the Underwriters and each report on Form 10-KSB (or 10-K, by dealers under the securities laws of such jurisdictions as the case Representatives may be), including each amendment thereto, a copy designate and at the request of any report on Form 10-QSB (the Representatives will make such applications and furnish such consents to service of process or 10-Q, other documents as may be required of it as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect issuer of the CompanyStock for that purpose; provided, however, that the Company shall not be required to qualify to do business or its affairs which was released or prepared by or on behalf to file a general consent (other than that arising out of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) offering or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and its subsidiary file such statements and reports as are consolidated.or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the
Appears in 3 contracts
Sources: Underwriting Agreement (Go2net Inc), Underwriting Agreement (Go2net Inc), Underwriting Agreement (Go2net Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) a. The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement thereto becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in the first sentence of Section 5(e) below, of any request by change in the Company's condition (financial or other), business, properties, net worth, results of operations, or prospects or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
b. The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
c. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state which you shall enter not previously have been advised (with a stop order or suspend such qualification at any time, the Company will make every effort reasonable opportunity to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any review such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiarysupplement) or its businesses to which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedyou have reasonably objected after being so advised.
Appears in 2 contracts
Sources: Underwriting Agreement (Inspire Insurance Solutions Inc), Underwriting Agreement (Inspire Insurance Solutions Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort shall use its best efforts to obtain promptly the lifting prompt withdrawal of such the order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriter, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Underwriter in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriter or Oxxxxx, Hxxxxxxxxx & Sxxxxxxxx LLP ("Underwriter's Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Underwriter agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Underwriter's Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriter promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Underwriter's Counsel, and the Company will furnish to the Underwriters Underwriter copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Underwriter may request.
(g) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, in the event the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeUnderwriter:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(i) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(ii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iii) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iiiv) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Underwriter may request. .
(v) During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(vi) The Company will maintain a Transfer Agent and Warrant Agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Underwriter's order, without charge, at such place as the Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriter may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Underwriter with true copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of 180 days subsequent to the date of the final closing relating to the Offering, which Offering will terminate 90 days after the date the final Prospectus included in the Registration Statement is declared effective under the Securities Act of 1933, as amended, unless extended for an additional 90 days, the officers and directors of the Company, all holders of shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, agree that it or he or she will not directly or indirectly, issue, offer to sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Underwriter and the Company (the "Lock-up Agreements"
Appears in 2 contracts
Sources: Underwriting Agreement (Coates Motorcycle Co LTD), Underwriting Agreement (Coates Motorcycle Co LTD)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) the Registration Statement time and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed, (iii) of the receipt of any comments of the Commission relating to the Registration Statement, or any request by the Commission for amendments or supplements to the Registration Statement or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Notes for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) of any request by within the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification period beginning at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as thereafter from time to time in force, so far for such period as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Securities Act to be delivered in connection with sales by any Underwriter or a dealer, of any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company or Underwriters' Counselany subsidiaries thereof, taken as a whole, or of any event that comes to the Prospectus, attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the ActSecurities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will notify make every reasonable effort to obtain the Representative promptly and prepare withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 the provisions of Rule 430B and in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and any such Issuer Free Writing Prospectus in the manner and within the time period required by Rule 433. As used in this Agreement, “subsidiaries” shall mean all of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, wholly-owned and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available partially-owned direct and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect indirect subsidiaries of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 2 contracts
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.), Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representatives be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will use its reasonable best efforts to cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. If required, the Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Shares.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (including financial “FINRA”) or the Nasdaq Global Market (“Nasdaq”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request, provided that the Company’s obligation pursuant to this Section 5(k) shall be satisfied to the extent the Company files or furnishes any such documents or report to XXXXX.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable out-of-pocket costs and expenses (including, without limitation, the fees and expenses of the Underwriters’ outside attorneys) incurred by the Underwriters in connection herewith, not to exceed $100,000.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretoat the reasonable request of the Underwriters, a copy the Company will furnish to you, as promptly as possible following your request, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with Nasdaq all documents and notices required by the Nasdaq of companies that have or will issue securities that are consolidatedtraded on the Nasdaq.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement, Underwriting Agreement (Leap Therapeutics, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document (if required to be stated filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will furnish file all documents required to be filed with the Underwriters copies Commission pursuant to Sections 13, 14 and 15 of such amendment or supplement as soon as available the Exchange Act in the manner and in such quantities as within the Underwriters may requesttime periods required by the Exchange Act.
(gj) During The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of three (3) years one year after the date hereof.
(k) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) During the period ending three years from the date hereof, upon receipt of a written request from you, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment theretoavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any report national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on Form 10the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-QSB of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10-Qenter into any transaction or device that is designed to, as or could be expected to, result in the case may bedisposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options, rights or other instruments pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendment thereto and each current report on Form 8-Kamendments, including any amendment thereto, and will promptly deliver a copy of each such report with respect to the Representative and will deliver to the Representative:
(i) every press release and every material news item registration of any shares of Common Stock or article of interest to the financial community in respect securities convertible, exercisable or exchangeable into Common Stock or any other securities of the CompanyCompany or (4) publicly disclose the intention to do any of the foregoing, or its affairs which was released or prepared by or in each case without the prior written consent of the Representative on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (Underwriters, and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts cause each officer and director of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waive such extension in writing.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are traded on NASDAQ.
(s) The Company shall engage and maintain, at its subsidiary are consolidatedexpense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Carolina Financial Corp), Underwriting Agreement (Carolina Financial Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement and any amendments thereto to has become effective with and the Commission as promptly as practicable time and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Securities Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Securities Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company or any amendment subsidiaries thereof, taken as a whole, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.under
Appears in 2 contracts
Sources: Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.), Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.)
Covenants and Agreements of the Company. (a) The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(ai) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange 1934 Act before termination of the offering of the Preferred Shares by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange 1934 Act or the Rules and Regulations.
(bii) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, or if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(ciii) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriters) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.by
Appears in 2 contracts
Sources: Underwriting Agreement (Omnicorder Technologies Inc), Underwriting Agreement (Omnicorder Technologies Inc)
Covenants and Agreements of the Company. The Company covenants and agrees --------------------------------------- with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A of the of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective as soon as practicable after the execution of this Agreement, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Date, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earning statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeRepresentatives and, upon request, to each of the Underwriters:
(i) every press release as soon as practicable after the end of each fiscal year, copies of each annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and every material news item or article statements of interest to income, stockholders' equity and cash flows for the financial community in respect year then ended and the opinion thereon of the Company's independent public accountants, or and each other report furnished by the Company to its affairs which was released or prepared by or on behalf of the Companystockholders; and
(ii) copies of any additional other reports (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such; (iii) as soon as practicable after the filing thereof, each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report or financial statement filed by the Company with the Commission, or the NASD or any securities exchange; and (iv) from time to time such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative as you may request. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to maintain the listing of the Stock on the New York Stock Exchange.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Rules and Regulations) during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set, other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus.
(l) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of Rules and Regulations, the Company will furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(m) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(n) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(o) Prior to each of the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(p) Prior to each of the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the first Closing Date, the Company will use its best efforts to provide to you copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Schein Pharmaceutical Inc), Underwriting Agreement (Schein Pharmaceutical Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(i) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every commercially reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior written consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(i) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) During the Prospectus Delivery Period, the Company will file all documents required to be stated filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(j) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, each such amendment other than those arising out of the offering or supplement to be satisfactory to Underwriters' Counselsale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. If required, the Company will furnish use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the Underwriters copies application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such amendment or supplement Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as soon as available and required for the distribution of the Shares, but in such quantities as the Underwriters may request.
(g) During a period of three (3) years no event beyond one year after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 or 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including travel expenses and reasonable and documented fees of counsel for the Underwriters, excluding wages and salaries paid by you) reasonably incurred by you in connection herewith, subject to a maximum amount of $50,000; provided, however, that, other than reasonable and documented fees of counsel of the Underwriters, the Company will not reimburse you for any individual fee or expense in excess of $10,000 without having received the Company’s prior written consent.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), the Company agrees not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be reasonably expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration for the offer and sale by the Company of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than the filing of a registration statement pursuant to Form S-8 in connection with the Company’s equity incentive plans) or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule IV hereto to furnish to the Representative, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). The restrictions contained in the preceding sentence shall not apply to (A) the Shares to be sold hereunder, (B) the sale and issuance of Company securities pursuant to an existing contractual relationship of the Company in effect as of the date of this Agreement, (C) the issuance of shares of Common Stock, restricted stock units, stock appreciation rights, options to purchase Common Stock or performance units pursuant to employee benefit plans, qualified stock option plans, the Company’s equity incentive plans or other employee compensation plans in effect on the date of this Agreement or pursuant to currently outstanding restricted stock units, stock appreciation rights, options, warrants or rights, (D) the sale and issuance of Company securities on a pro rata basis to all holders of a class or series of outstanding securities of the Company, (E) the sale or issuance of securities in connection with an acquisition, a merger, a consolidation or sale or purchase of assets or in connection with a strategic alliance, investment, loan agreement, partnership, licensing or other joint venture or strategic transaction and (F) the conversion or exchange of options, warrants or other securities of the Company convertible into or exchangeable for Common Stock of the Company outstanding as of the date of this Agreement.
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, at the reasonable request of the Underwriters, the Company will furnish to its stockholdersyou, as soon promptly as practicablepossible, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Adma Biologics, Inc.), Underwriting Agreement (Adma Biologics, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(i) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(i) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) During the Prospectus Delivery Period (as defined below), the Company will file all documents required to be stated filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to the Underwriters each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestthereof.
(gj) During The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of three (3) years after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) During the period ending three years from the date hereof, the Company will promptly furnish to its stockholdersyou and, as soon as practicableupon your request, to each of the other Underwriters if not otherwise available on EXXXX, (i) a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer, director and shareholder of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waives such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy if not otherwise available on EXXXX, as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Federated National Holding Co), Underwriting Agreement (Federated National Holding Co)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Purchasers as follows:
(a) The During the five-year period following the Closing Date, provided any of the Notes remain outstanding, the Company shall use its best efforts furnish to cause the Registration Statement Purchasers all reports, documents, information and any amendments thereto to become effective financial statements filed by the Company with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment pursuant to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Trust Indenture Act, the Exchange Act or the Rules and Regulations.
(b) As soon During the two-year period following the date of this Agreement, for so long as and at any time that the Company is advised not subject to Section 13 or obtains knowledge thereof15(d) of the Exchange Act, upon request of any holder of the Notes, the Company will advise shall furnish to such holder, and to any prospective purchaser or purchasers of the Representative and confirm Notes designated by such holder, information satisfying the notice in writing, requirements of subsection (id)(4) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated 144(A) under the Act will Securities Act. This covenant is intended to be relied upon, when for the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) benefit of the issuance by the Commission of any stop order or holders from time to time of the initiation or the threatening of any proceeding suspending the effectiveness Notes, and prospective purchasers 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 Notes designated by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such orderholders.
(c) The Company shall file use the Prospectus (in form and substance satisfactory to net proceeds from the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date sale of the Registration StatementUnits in the manner specified in Annex VIII to this Agreement.
(d) The Company will give the Representative notice shall not, and it shall use its best efforts to ensure that no Affiliate 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 will, “offer,” “sell” or solicit offers to buy or otherwise negotiate in respect of any “security” (as each of such terms are defined in the Underwriters in connection Securities Act) which could be integrated with the offering sale of the Securities which differs from Notes or the corresponding prospectus on file at Warrants in a manner that would require the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) registration of the Rules and Regulations), and will furnish Notes or the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as Warrants under the case may be,Securities Act.
(e) The Company shall endeavor in good faithnot, 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 so long as the Representative may designate Notes are outstanding, be or become (and use its best efforts not to permit 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 continuance of sales and dealings therein for as long as may be necessary to complete the distributionInvestment Company Act, 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 or become (and use its best efforts not to be or become owned by) a closed-end investment company 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 effectedregistered, but not registered under the Investment 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 The Company shall comply with the time when 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.
(g) For a prospectus period ending on the earlier of five (5) years from the date of this Agreement or the date on which the aggregate principal amount of Notes outstanding is required to be delivered under the Actless than $1,000,000, the Company shall use all reasonable efforts maintain the Portal (or, alternatively national securities exchange listing) listing of the Notes.
(h) The Company agrees to comply file a Notice of Sale of Securities pursuant to Regulation D, Section 4(6), and/or Uniform Limited Offering Exemption on Form D with all requirements imposed upon it respect to the Securities as required under Regulation D and to provide a copy thereof to the Purchasers promptly after such filing.
(i) For a period of ninety (90) trading days (being a day on which the Nasdaq Stock Market is open for trading equity securities) after the effectiveness of the Shelf Registration Statement (the “Lock Up Period”), the Company will not, directly or indirectly, (A) announce an offering of, or file a registration statement with the Commission relating to, any equity securities of the Company (other than the offering and registration contemplated by the Act Registration Rights Agreement) or, without the prior written consent of the holders of a majority of the Warrants then outstanding, offer for sale, sell, assign, transfer, pledge, contract to sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition or purchase by any person at any time in the future of) any shares of Common Stock or debt securities (other than short term debt securities) or securities convertible into or exercisable or exchangeable for shares of Common Stock or debt securities (other than short term debt securities), or sell or grant options, warrants or rights with respect to any shares of Common Stock or debt securities (other than short term debt securities) or securities convertible into or exercisable or exchangeable for Common Stock, debt securities (other than short term debt securities) or substantially similar securities (other than the grant of options, warrants, convertible debenture or rights that are currently authorized pursuant to option plans existing on the date hereof), or (B) 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 the foregoing clauses (A) or (B) is to be settled by delivery of Common Stock, debt securities (other than short term debt securities) or other securities, in cash or otherwise. Notwithstanding anything to the contrary contained herein, during the Lock Up Period (I) the Company may issue (x) the Securities as contemplated by this Agreement, (y) shares of Common Stock (and rights to purchase such shares) under the Company’s employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants, convertible debentures or other rights to purchase or acquire Common Stock and (z) equity securities in one or more private placements by the Company, so long as the Company does not file a registration statement with the Commission on behalf of the private placement investors until the Commission has declared effective the Shelf Registration Statement and (II) the Company may file one or more registration statements that include only securities issuable under employee plans approved by the Board of Directors and registered on Form S-8.
(j) The Company shall, on or before 9:00 a.m., New York City Time, on the first Business Day following the date of this Agreement, issue a press release (the “Press Release”) reasonably acceptable to Context Capital, disclosing all material terms of the transactions contemplated by this Agreement, but not disclosing the identity of any of the Purchasers, and announcing the acquisition of the Company’s interest in CD&L, Inc. and the execution of the merger agreement with CD&L, Inc. and, to the extent permitted by applicable law, disclosing the material terms of such acquisition and merger. On or before 5:00 p.m., New York City Time, on the fourth Business Day following the date of this Agreement, the Company shall file a Current Report on Form 8-K describing the terms of the transactions contemplated by the Transaction Documents in the form required by the Exchange Act, and attaching the material Transaction Documents (including, without limitation, this Agreement and all schedules and exhibits to this Agreement), as now exhibits to such filing. From and hereafter amended after the issuance of the Press Release, no Purchaser shall be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of its respective officers, directors, employees or agents, that is not disclosed in the Press Release. Except for communications required under the Transaction Documents, the Company shall not, and shall cause each of its Subsidiaries and each of their respective officers, directors, employees and agents, not to, provide any Purchaser with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the filing of the Press Release without the express written consent of such Purchaser. In the event of a breach of the foregoing covenant by the Rules Company, any Subsidiary, or each of its respective officers, directors, employees and Regulationsagents, as from time in addition to time in forceany other remedy available to the Purchasers, so far as necessary a Purchaser shall have the right to permit the continuance of sales of or dealings make a public disclosure, in the Securities in accordance with form of a press release, public advertisement or otherwise, of such material, nonpublic information without the provisions hereof and prior approval by the ProspectusCompany, its Subsidiaries, or any amendments of its or supplements thereto. If at any time when a prospectus relating their respective officers, directors, employees or agents; provided, that the Purchaser shall give to the Securities or Company notice at least twenty four (24) hours prior to making any such disclosure and allow the Underwriter's Preferred Shares is required to be delivered under Company the Act, any event option of making such public disclosure during such twenty four (24) hour period. No Purchaser shall have occurred as a result any liability to the Company, its Subsidiaries, or any of whichits or their respective officers, in directors, employees, shareholders or agents for any such disclosure.
(k) In connection with the opinion receipt of counsel for the written consent of the holders of at least 62.5 % of each class of outstanding preferred stock of the Company or Underwriters' Counsel, (separately by class) and the Prospectus, as then amended or supplemented, includes an untrue statement holders 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 majority of the circumstances under issued and outstanding shares of Common Stock, which they were madeconsent was obtained prior to the execution and delivery of this Agreement, not misleading, or if it is necessary at any time to amend approving the Prospectus to comply with issuance of Common Stock upon exercise of the ActWarrants and upon conversion of the Series Q Preferred Stock, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 information statement pursuant to Rule 14c-2 of the Act, each Exchange Act regarding such amendment or supplement to be satisfactory to Underwriters' Counsel, and matters (the Company will furnish to the Underwriters copies of such amendment or supplement “Required Information Statement”) as soon as available possible, and in any event within twenty (20) days (but if such quantities as twentieth (20th) day is not a Business Day, then on the Underwriters may request.
(g) During a period of three (3) years next succeeding Business Day), after the date hereofof this Agreement and thereafter mail such Required Information Statement to its other stockholders as soon as practicable as such mailing is permitted in compliance with the Exchange Act. If the Commission reviews such information statement, the Company will furnish seek to resolve all comments made by the Commission so that the Information Statement can be mailed as expeditiously as possible.
(l) The Company will not amend or waive any provision of the Merger Agreement or any of the Voting Agreements which will have an adverse effect on the Purchasers without the prior written consent of the holders of a majority in principal amount of the Notes. The Company will comply with each of its stockholderscovenants set forth in the Merger Agreement and the Voting Agreements.
(m) On or before the date of this Agreement, the Company will cause each executive officer of the Company as soon as practicable, each annual report (including financial statements audited by independent public accountantsof the date of this Agreement to enter into a lock-up agreement for the benefit of the Purchasers substantially to the effect of Section 4(i), subject to customary exceptions to be agreed upon by the parties to this Agreement. Annex X to this Agreement contains an accurate list of such persons.
(n) During the period between the date of this Agreement and each report on Form 10-KSB (the consummation of the merger contemplated by the Merger Agreement, the Company will not issue or 10-Ksell any shares of its capital stock or securities exercisable for, as the case may be)exchangeable for or convertible into shares of its capital stock, including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
except: (i) every press release and every material news item or article of interest capital stock issued pursuant to the financial community terms of options, warrants or preferred stock outstanding on the date of this Agreement (as in respect effect on the date of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
this Agreement) and (ii) grants of options to employees made pursuant to the Company’s stock option plans as in effect on the date of this Agreement.
(o) The Company will not refer to any additional information Purchaser by name in any public statement, document or filing without obtaining the prior written consent of a public nature concerning such Purchaser; provided that provisions of this Section 4(o) shall not apply: (i) to any disclosure required by applicable law, rule or regulation or by the applicable rules, regulations or listing requirements of any stock exchange on which securities of the Company may from time to time be listed; (and ii) to any future subsidiarydisclosure or notice required by the terms of any of the Unit Transaction Documents; or (iii) to any disclosure or its businesses which notice required by the Representative may request. During such three (3)-year period, if terms of any other agreement of the Company has or the Subsidiaries to which such Purchaser is a party or of which such Purchaser is an active subsidiaryintended beneficiary, the foregoing financial statements will be on a consolidated basis but to the extent that practicable the accounts Company will notify a Purchaser prior to referring to such Purchaser by name pursuant to the exceptions described in the preceding clauses (i) to (iii).
(p) The Company will use its best efforts to maintain the listing of the Company and its subsidiary are consolidatedCommon Stock on the Nasdaq Stock Market or another recognized securities exchange registered with the Commission.
Appears in 2 contracts
Sources: Purchase Agreement (Velocity Express Corp), Purchase Agreement (Velocity Express 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, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock as contemplated herein and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months 18 or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Date, three (3) signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the ActRepresentatives, each such amendment or supplement use its best efforts to be satisfactory to Underwriters' Counselobtain the withdrawal thereof.
(g) As and when required by the Rules and Regulations, and the Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants. During the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its stockholders and will deliver to the Representative:
Representatives, (i) every press release as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional information of a public nature concerning reports and financial statements furnished to or filed with the Company (and Commission or any future subsidiary) national securities exchange or its businesses which the Representative may requestNASD. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to maintain the inclusion of the Stock on the Nasdaq National Market (or on a national securities exchange) for a period of five (5) years after the effective date of the Registration Statement.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) The Company will not (i) directly or indirectly, offer, sell, assign, transfer, encumber, pledge, contract to sell, grant an option to purchase or otherwise dispose of, other than by operation of law, any shares of Common Stock or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clauses (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set, other than (A) the Company's sale of Common Stock hereunder, (B) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters have been advised in writing and (C) the issuance by the Company of any option to purchase any shares of Common Stock pursuant to its Stock Option Plan described in the Prospectus.
(k) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of Rules and Regulations, the Company will furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(m) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(n) Prior to the Closing Date the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent.
(o) During the period of five (5) years hereafter, the Company will furnish to the Representatives and, upon request of the Representatives to each of the Underwriters, as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
(p) The Company will use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Firm Stock.
Appears in 2 contracts
Sources: Underwriting Agreement (Kos Pharmaceuticals Inc), Underwriting Agreement (Kos Pharmaceuticals Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representative have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representative have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representative have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representative promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representative promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representative promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representative a copy, reasonable time prior to the proposed filing thereof or to which the Representative shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representative, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.necessary to
Appears in 2 contracts
Sources: Underwriting Agreement (Homecom Communications Inc), Underwriting Agreement (Homecom Communications Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and you promptly and, if requested by you, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. If the Company elects, with the consent of the Representatives, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission an appropriate supplement or amendment thereto and, in the case of any such amendment, use its best efforts to cause such amendment to become effective as promptly as possible, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In each such amendment or supplement to be satisfactory to Underwriters' Counseljurisdiction in which the Shares shall have been qualified as above provided, and the Company will furnish to make and file such statements and reports in each year as are or may be required by the Underwriters copies laws of such amendment or supplement as soon as available and jurisdiction. If the qualification of the Shares is suspended in such quantities as any jurisdiction, the Underwriters may requestCompany shall so advise you promptly in writing.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou such information concerning the Company, excluding non-public information, as soon you may reasonably request, provided that the Company shall have no obligation to furnish any documents available to the public on EDGAR. During the Prospectus Delivery Period, the Company will file alx xxxuments required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption "Use of Proceeds" in the Prospectus.
(j) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
(k) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing except to the Underwriters pursuant to this Agreement and except for grants of options pursuant to the Company's stock option, stock bonus or other stock plans or arrangements in effect as practicable, each annual report of the date hereof and described in the Prospectus and except for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans.
(including financial statements audited by independent public accountants), and each report on Form 10-KSB (l) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(o) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(p) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(q) With a view to minimizing the dilution to future earnings per share that might be experienced by the holders of Common Stock (including holders of the Shares), the Company will call for redemption and redeem, or will otherwise purchase, retire, or exchange for non-equity-linked securities, all or as large a portion as possible of its outstanding 6% convertible subordinated debentures if and when, as soon as practicable after the Closing Date, it shall determine, in its reasonable business judgment (being mindful of other needs for cash and credit), that it has cash and credit available for that purpose.
Appears in 2 contracts
Sources: Underwriting Agreement (Noble International LTD), Underwriting Agreement (Noble International LTD)
Covenants and Agreements of the Company. The Company covenants and agrees with each 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 with the Commission 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 applicable Warrant Agreement, if any, as the Exchange Act before termination 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 Preferred 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 within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.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 with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) 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 Xxx. Xhe 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 the state securities commission authority of any state 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 fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations)otherwise, and will furnish the Representative you with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing filing, and will not file any such amendment or usesupplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations as the case may be,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 Xxx) xxd 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 or the Underwriter's Preferred Shares 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 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 continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities, the Warrant
(i) 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 no later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) that will be in reasonable detail (but which need not be audited) and that will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(j) 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 the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after from the date hereof, the Company will furnish deliver to its stockholdersyou and, as soon as practicableupon request, to each of the other Underwriters, (i) copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Companyyou, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional information of a public nature concerning other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any future subsidiary) or its businesses which national securities exchange. In the Representative may request. During such three (3)-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 subsidiaries are consolidatedconsolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations.
(k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in all material respects consistent with the description thereof in the Prospectus under "Use of Proceeds."
(l) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities have occurred or are to occur.
(m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(n) The Company will not, 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 than pursuant to this Agreement, employee benefit plans existing on the 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 observe a similar restriction respecting securities of the Company owned by them.
(o) If the Preferred Stock or Depositary Shares are convertible into Common Stock or if Common Stock Warrants are issued, the Company 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 satisfy, any obligations to issue such shares upon conversion of the Preferred Stock or the Depositary Shares, as the case may be, or upon exercise of the Common Stock Warrants.
(p) If the Preferred Stock or Depositary Shares are convertible into Common Stock or if the Common Stock Warrants are exercised, the Company will use its best efforts to list the shares of Common Stock issuable upon conversion of the Preferred Stock or Depositary Shares or upon exercise of the Common Stock Warrants on the New York Stock Exchange or such other national exchange on which the Company's shares of Common Stock are then listed.
(q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, 117,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.
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 followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to of the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred Founding Companies occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earning statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may reasonably designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives, as soon as practicablethey are available, copies of each annual report (including financial of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements audited by of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants), accountants and each other report on Form 10-KSB (or 10-K, as communication furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its stockholders and will deliver to the Representative:
Representatives, (i) every press release as soon as they are available, copies of any other reports or communication (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional information of a public nature concerning reports and financial statements furnished to or filed with the Company (and Commission, or the NASD or any future subsidiary) or its businesses which the Representative may requestnational securities exchange. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to quality for inclusion, subject to official notice of issuance, on the Nasdaq National Market, the Stock to be issued and sold by the Company.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) The Company will not, without the prior written consent of Ladenburg, 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 180 days following the date of the Prospectus, other than: (i) the Company's sale of Common Stock hereunder, (ii) the issuance of the Warrants and the Company's issuance of Common Stock upon the exercise of the Warrants, (iii) in connection with the Founding Company Mergers as described in the Registration Statement, (iv) upon the exercise of stock options or upon conversion of the Preferred Stock and the Restricted Common Stock, granted or issued prior to the date hereof and as described in the Registration Statement, (v) 2,500,000 shares of Common Stock to be used for the acquisition of companies in the collectibles, gift or animation art industries, and (vi) the grant of stock options pursuant to the Option Plans. The Company will not waive the provisions of Section 15.1 of each Agreement and Plan of Organization during the 180 days following the date of the Prospectus without the prior written consent of Ladenburg.
(k) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(l) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(m) Prior to the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and each of the Founding Companies for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(n) Prior to the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of the Founding Companies, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent.
(o) The Company will not at any time, directly or indirectly, take any action designed or intended to stabilize or manipulate the price of any security of the Company, or which caused or resulted in, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.
(p) The Company will file a Form SR in compliance with the requirements of the Securities Act and the Rules and Regulations.
(q) The Company will (i) use its best efforts to satisfy all conditions to the consummation of the Founding Company Mergers as set forth in the applicable Agreement and Plan of Organization with respect thereto, and (ii) promptly notify the Representatives of the occurrence of any event which may result in the non-consummation of any of the Founding Company Mergers.
(r) Until the expiration of two years from the First Closing Date, in connection with any public offering of equity securities by the Company, the Company shall not appoint anyone as manager for such public offering, unless the Company shall first offer the opportunity to act as a manager to Ladenburg, upon specified terms and conditions, and if Ladenburg shall fail to accept such terms and conditions within thirty days, then the Company shall be free to appoint any other firm or organization as a manager upon terms and conditions which shall not be more favorable to such firm or organization than those so offered to Xxxxxxxxx.
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 with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under the Act or the Exchange Act before termination and of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance receipt of any comments of the Commission, or any request by the Commission of any stop order for amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of supplements to the Registration Statement or Statement, 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 stop order suspending the effectiveness of the Registration Statement or of the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purposesuch purposes, 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 the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, upon request, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the 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 fifteenth business day after “Prospectus Delivery Period”), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus and each Issuer Free Writing Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and each Issuer Free Writing Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, each such amendment other than those arising out of the offering or supplement sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. If the Class A Common Stock fails to be satisfactory be, or ceases to Underwriters' Counselbe, and listed on a national securities exchange, the Company will furnish use its best efforts to qualify or register its Class A Common Stock for sale in non-issuer transactions under (or obtain exemptions from the Underwriters copies application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such amendment or supplement as soon as available Blue Sky laws and will continue such qualifications, registrations and exemptions in such quantities as the Underwriters may request.
(g) During effect for a period of three (3) years one year after the date hereof.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158) covering the twelve-month period commencing after the effective date of the Registration Statement, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(k) During the Prospectus Delivery Period, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment theretoavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the New York Stock Exchange (“NYSE”) or any report national securities exchange; provided, the Company will be deemed to have furnished such information to the extent it is filed on Form 10XXXXX.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to Section 12 or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-QSB of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise dispose of, directly or indirectly (or 10-Qenter into any transaction or device that is designed to, as or could be expected to, result in the case may be)disposition by any person at any time in the future of) any shares of Class A Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock, (ii) enter into any swap or other transaction that transfers to another, in whole or in part, any of the economic consequences of ownership of such shares of Class A Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Class A Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement with the Commission, including any amendment thereto and each current report on Form 8-Kamendments, including any amendment thereto, and will promptly deliver a copy of each such report with respect to the Representative and will deliver to the Representative:
(i) every press release and every material news item registration of any shares of Class A Common Stock or article of interest to the financial community in respect securities convertible, exercisable or exchangeable into Class A Common Stock or any other securities of the CompanyCompany or (iv) publicly disclose the intention to do any of the foregoing, or its affairs which was released or prepared by or in each case without the prior written consent of the Representatives on behalf of the Underwriters. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Class A Common Stock or any securities convertible (in accordance with their terms, at the option of the holder or otherwise) into or exercisable or exchangeable for Class A Common Stock issued upon the exercise of options granted under the Company; and’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 the Company’s named executive officers that are outstanding on the date of this Agreement, or (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.
(iio) The Company will comply with all provisions of any additional information undertakings contained in the Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Class A Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will timely file with the NYSE all documents and notices required by the NYSE of companies that have securities that are traded on the NYSE.
(r) The Company shall maintain, at its expense, a public nature concerning 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 the transfer agent) for the Class A Common Stock.
(s) The Company will file, within applicable deadlines, all material required to be filed by it with the Commission pursuant to Section 12(g), 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date of the Prospectus and during the Prospectus Delivery Period, that is required in connection with the offering of the Shares.
(t) The Company will use its best efforts to meet the 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 “Code”), and the Company (and any future subsidiary) or will use its businesses which best efforts to continue to qualify for taxation as a REIT under the Representative may request. During such three (3)-year period, if Code unless the Company has an active subsidiary, Company’s Board of Directors determines in good faith that it is no longer in the foregoing financial statements will be on a consolidated basis to the extent that the accounts best interests of the Company and its subsidiary are consolidatedstockholders to so qualify or to be so qualified.
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 Underwriters as followsXxxxxxxx:
(a) The Company shall use its best efforts to cause the Registration Statement and To make no amendment or any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus unless Xxxxxxxx is given a copy of such proposed amendment or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copysupplement; to advise Xxxxxxxx, or to which the Representative shall have objected within two (2) business days promptly after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge it receives notice thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission any state, federal or other regulatory authority of any stop order or of any order preventing or suspending the use of any Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or the threatening of any proceeding suspending for any such purpose, or of any request by any regulatory authority for the effectiveness amending or supplementing of the Registration Statement Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectussuspending any such qualification, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment promptly to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to obtain promptly the lifting withdrawal of such order.;
(cb) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will To furnish the Representative Kendrick with copies of any the Prospectus in such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, quantities as the case Xxxxxxxx may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in forcereasonably request, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectusand, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, if any event shall have occurred as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or if it is necessary at any supplement the Prospectus, to notify Xxxxxxxx and upon Xxxxxxxx 's request to prepare and furnish without charge to Xxxxxxxx as many copies as Xxxxxxxx may from time to amend time reasonably request of an amended Prospectus or a supplement to the Prospectus to comply with which will correct such statement or omission or effect compliance;
(c) To use the Act, net proceeds received by it from the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 sale of the Act, each such amendment or supplement Notes pursuant to be satisfactory to Underwriters' Counsel, and this Agreement in the Company will furnish to manner specified in the Underwriters copies Prospectus under the caption "Use of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.Proceeds";
(gd) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every There has been no material news item or article of interest to the financial community in respect of the Companyadverse change, or its affairs which was released any development involving a prospective material adverse change, in the condition, financial or prepared by otherwise, in the earnings, business or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts operations of the Company and its subsidiary subsidiaries, takes as a whole, except as set forth in the Prospectus;
(e) There are consolidated.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 offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, the Company will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(g) Except as described in the Prospectus, (i) the Company has good and marketable title to all real property and good and marketable title to all personal property owned, mortgage notes and debt securities by it which is material to the business of the Company, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company; and (ii) any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material to the Company and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company;
(h) The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or other regulatory authorities necessary to conduct its business as presently conducted, except as described in the Prospectus or where the failure to possess such certificates, authorizations and permits would not, singly or in the aggregate, have a material adverse effect on the Company, taken as a whole; and no officer or representative of the Company has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company, taken as a whole, except as described in the Prospectus; and
(i) The consolidated financial statements of the Company and the related notes thereto included in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the related rules and regulations of the Commission; present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and cash flows of the Company and its consolidated subsidiaries for the periods specified; and have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby (except as noted therein) ; and
Appears in 1 contract
Sources: Managing Placement Agent Agreement (Ministry Partners Investment Company, LLC)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares Securities by the Underwriters of which the Representative Underwriters and Underwriters' Counsel shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters or Underwriters' Counsel shall have objected within two (2) business days after its receipt thereof except if deemed necessary by counsel for the Company, in which case the Underwriters shall have the right to terminate this Agreement upon prompt notice to the Company), or which is not in compliance with the Act, the Exchange Act, 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 as soon as practicable confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) Underwriters or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (), or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than on or before the Commission's close of business on date it is required to be filed under the earlier of (i) Act and the second business day following the execution Rules and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementRegulations.
(d) The Company will give the Representative Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which that the Company proposes for use by the Underwriters in connection with the offering of the Securities which that differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or Underwriters' Counsel shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate identified on Exhibit C to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, provided the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its securityholders (including Bondholders), in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of three (3) years at least 12 consecutive months after the effective date hereofof the Registration Statement.
(h) So long as any of the Bonds remain outstanding, the Company will furnish to its stockholdersBondholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report other reports required to be delivered pursuant to the Representative Indenture, and will deliver to Brookstreet Securities Corporation, as representative for the RepresentativeUnderwriters:
(i) concurrently with furnishing such quarterly reports to its securityholders, statements of income of the Company for each quarter in the form furnished to the Company's securityholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its securityholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any state securities commission, NASDAQ/SCMS, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of each of the Company, Company and the Subsidiaries or its their respective affairs which was released or prepared by or on behalf of the CompanyCompany or any of the Subsidiaries; and
(iivi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiarysubsidiaries) or its their respective businesses which the Representative Underwriters may request. During such three (3)-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and, if necessary under the laws of the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock, and also for the Bonds.
(j) The Company will furnish to the Underwriters or on the Underwriters' order, without charge, at such place as the Underwriters may designate, copies of the Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriters may request.
(k) Neither the Company nor any of the Subsidiaries nor any of their respective executive officers directors, principal stockholders or affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company in violation of the Exchange Act.
(l) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "USE OF PROCEEDS" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire or redeem any securities issued by the Company, provided that this covenant shall not restrict the Company's ability to redeem the Securities pursuant to their terms.
(m) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time under the Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(n) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants as stated in their letters to be furnished pursuant to Section 6(i) hereof.
(o) The Company shall apply and use its best efforts to cause the Securities and the Common Stock to be quoted on NASDAQ/SCMS and for a period of five years from the date hereof, use its best efforts to maintain the NASDAQ/SCMS listing of the Securities to the extent outstanding.
(p) The Company shall, as soon as practicable, but in no event later than five business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and the Underlying Stock.
(q) The Company hereby agrees that, for such time as at least 40% of the Bonds are outstanding, the Company will not issue, or enter into a contract for the issuance of, more than five percent of the Company's issued and outstanding Common Stock, determined as of the Closing Date and assuming full conversion of all convertible securities, including without limitation the Bonds, and the exercise of all outstanding warrants, options and other securities (qualified, non-qualified or contractual), including without limitation the Representatives' Warrants, without the consent of the Representative, which consent may not be unreasonably withheld. The conversion of any convertible securities into, or the exercise of any right to purchase or otherwise acquire, the Company's Common Stock shall not be deemed an issuance of the Company's common stock subject to this restriction.
(r) Until the completion of the distribution of the Securities, neither the Company nor any of the Subsidiaries shall, without the prior written consent of the Underwriters and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company, any of the Subsidiaries, their respective activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(s) For any period during which any of the Bonds are outstanding, the Company will not take any action or actions which may cause the exemption from registration provided by Section 3(a) of the Act (or any successor provision) to be unavailable for the conversion of the Bonds into Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Ilx Inc/Az/)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice same in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the outcome of which may result in the suspension of the effectiveness of the Registration Statement or any order preventing or suspending the use of the 15 Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of any proceedings for that purpose, ; (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) with the Commission, or transmit the Prospectus by a means reasonably calculated to result in filing the same with the Commission pursuant to Rule 424(b)(1) of the Act (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) of the Act not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Firm Securities or Option Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such amendment or supplement to which the Representative or -, its counsel ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distributiondistribution contemplated hereby, and shall make such applications, file such documents and furnish such information as may be required for such purpose; providedPROVIDED, howeverHOWEVER, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.supplements
Appears in 1 contract
Sources: Underwriting Agreement (Vaso Active Pharmaceuticals Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representativefollowing:
(i) every press release and every material news item or article of interest at any time from the Effective Date to the financial community date that is fourteen (14) months from the Effective Date, each of 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 an equivalent warrant to purchase the same amount of shares of Common Stock, in the form of any other warrant to purchase Common Stock of the Company as may otherwise be outstanding as of the date hereof or which the Company may issue after the Effective Date and having the terms of any such other warrant, including, but not limited to, the exercise price thereof and the final exercise date or termination date;
(ii) at any time from the Effective Date to the date that is fourteen (14) months from the Effective Date, ATW Opportunities may in its sole discretion exchange any obligation of the Company to pay amounts in respect of the CompanyRevolving Note, or its affairs which was released or prepared by or on behalf for an equivalent instrument of the CompanyCompany 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;
(iii) following the date hereof the Company shall cause all cash proceeds from the sale of third-party Securities Collateral to be paid into an account of the Company identified by ATW Opportunities and ATW Master Fund (the “Sweep Account”), except for 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 if the cash balance of the Sweep Account is equal to or in excess of $10,000, the Company shall cause such proceeds (a) first, to be paid to ATW Opportunities until all amounts owing in respect of the Credit Agreement and Revolving Note have been paid in full, and (b) second, to ATW Master Fund until all amounts owing in respect of the Debenture have been paid in full;
(v) following the date hereof the Company shall provide to each of 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
(iivi) any additional information of a public nature concerning following the date hereof the Company (shall promptly notify each of ATW Opportunities and ATW Master Fund in writing of any future subsidiary) material changes in its financial condition, operational performance, or funding sources that may impact its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis ability to the extent that the accounts fulfill any of the Company and its subsidiary are consolidatedobligations 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 with confirm such notice in writing, of (i) the Commission as promptly as practicable and will not at any time, whether before or after the effective date effectiveness of the Registration Statement, file any amendment to the Registration Statement Statement, (ii) the transmittal to the Commission for filing of any amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment pursuant to the Registration Statement becomes effective1934 Act (other than any amendment, (ii) of supplement or document relating solely to securities other than the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purposeNotes), (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and Commission with respect to the Registration Statement or the Prospectus, (viv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If , (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the state securities commission authority initiation of any state shall enter a stop order proceedings for that purpose and (vi) any change in the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company or suspend such qualification at the public announcement by any timenationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain promptly the lifting of such orderthereof at the earliest possible moment .
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(db) The Company will give the Representative Agents advance notice of its intention to file or prepare any additional registration statement with respect to the registration of additional Notes, any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which other than an amendment or supplement providing solely for a change in the Company proposes for use interest rate or formula applicable to the Notes or a change relating solely to securities other than the Notes), whether by the Underwriters in connection with the offering filing of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed documents pursuant to Rule 424(b) of the Rules and Regulations)1934 Act or the 1933 Act or otherwise, and will furnish to the Representative with Agents copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior or other documents proposed to be filed or used a reasonable time in advance of such proposed filing or use, as the case may be,
(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, will not file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement or other documents in a form to be satisfactory to Underwriters' Counsel, and which the Company will furnish to Agents or counsel for the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestAgents shall reasonably object.
(gc) During a period of three (3) years after the date hereof, the The Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release Agent as many signed and every material news item or article of interest to the financial community in respect conformed copies of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
Registration Statement (ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.as originally
Appears in 1 contract
Sources: Distribution Agreement (Developers Diversified Realty Corp)
Covenants and Agreements of the Company. (a) The Company covenants and agrees with each of the Underwriters as follows:
(ai) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Underwriters shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(bii) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriters and the Selling Shareholders and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.the
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments amendment thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement or any registration statement filed pursuant to Rule 462(b) under the Act relating to the Registration Statement is filed or becomes effective, (ii) of if information is omitted from the issuance by Registration Statement pursuant to Rule 430A under the Commission of any stop order or of Act, when the initiation or the threatening of any proceeding suspending the effectiveness Prospectus or
(b) The Company will furnish to you, without charge, two signed copies of the Registration Statement or any order preventing or suspending as originally filed with the use Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Preliminary Prospectus or the Prospectus, or any Registration Statement as originally filed and of each amendment or supplement thereto, or the institution of proceedings for that purpose, thereto as you may reasonably request.
(iiic) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for The Company will not file any amendment to the Registration Statement Statement, file any registration statement pursuant to Rule 462(b) under the Act or make any amendment or supplement to the Prospectus of which you shall not previously have been advised (with a reasonable opportunity to review such amendment, registration statement or for additional informationsupplement) or to which you have reasonably objected after being so advised, or which is not in compliance with the Act. If The Company will prepare and file with the Commission any amendments or supplements to the state securities commission authority Registration Statement or Prospectus which, in the reasonable opinion of any state shall enter a stop order counsel of the several Underwriters, may be necessary or suspend such qualification at any time, advisable in connection with the Company will make every effort to obtain promptly distribution of the lifting of such orderShares by the Underwriters.
(cd) The Company shall file has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Prospectus (in form and substance satisfactory Prepricing Prospectus. The Company consents to the Representative) or transmit the Prospectus by a means reasonably calculated to result use, in filing accordance with the Commission pursuant to Rule 424(b)(1) (or, if applicable Act and if consented to the securities or "blue sky" laws of the jurisdictions in which the Shares are offered by the Representativeseveral Underwriters and by dealers, pursuant prior to Rule 424(b)(4)the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable (but in no event later than 48 hours from the execution and delivery of this Agreement) and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a
(iif) The Company will cooperate with you and counsel for the fifteenth Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or "blue sky" laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business day in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Shares shall have been qualified as above provided, the Company will make and file such statements and reports in each year as are or may be required by the laws of such jurisdiction. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a 12-month period commencing after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commissionand ending not later than 15 months thereafter, as soon as practicable after the case may be at end of such period, which consolidated earnings statement shall satisfy the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(bprovisions of Section 11(a) of the Rules Act and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered Rule 158 under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time will advise you in force, writing when such statement has been so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestmade available.
(gh) During a the period of three (3) ending five years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the National Association of Securities Dealers, Inc. (the "NASD"), the Nasdaq Stock Market or any national securities exchange, or mailed to shareholders and (ii) from time to time such other information concerning the Company as you may reasonably request. Until the termination of the offering of the Shares, the Company will timely file all documents, and any amendments to previously filed documents, required to be filed by it pursuant to Sections 13, 14 or 15(d) of the Exchange Act. In addition, until the earlier of such date that the Company has reported a profit for two consecutive years and either (i) the agreement with the OCC dated November 14, 1996 (the "OCC Agreement") has been terminated or (ii) the capital ratios set forth in the OCC Agreement have been complied with for 12 consecutive months, and, to the extent legally permissible, the Company will furnish to you, as soon as practicableit is available, each annual report (including financial statements audited by independent public accountants), and a copy of each report on Form 10-KSB from the FRB, OCC or DBF relating to the Company or the Bank. The Company agrees to use its best efforts to provide such reports to you including, without limitation, seeking approval from each such regulatory agency to release such reports to you.
(i) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the statements set forth under the caption "Use of Proceeds" in the Prospectus.
(j) If information is omitted from the Registration Statement pursuant to Rule 430A under the Act, the Company will timely file the Prospectus or 10-Ka term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(k) For a period of 180 days after the date of the Prospectus as first filed with the Commission pursuant to Rule 424(b) under the Act, without the prior written consent of Raymxxx Xxxex & Xssociates, Inc., the Company will not, directly or indirectly, issue, sell, contract to sell, offer or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, except (i) to the Underwriters pursuant to this Agreement, (ii) pursuant to and in accordance with the Company's stock option plans described in the Prospectus, (iii) pursuant to the exercise or conversion of warrants, stock options, preferred stock or convertible debentures issued and outstanding at the time of effectiveness of the Registration Statement and described in the Registration Statement or (iv) to employees pursuant to its employee stock purchase plan.
(l) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary Subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) The Company will not, directly or indirectly, take any action that would constitute or any action designed, or which might reasonably be expected to cause or result in or constitute,
(o) The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of ) the "blue sky" laws of each state where necessary to permit market making transactions and secondary trading, and will comply with such blue sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof, provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares in any jurisdiction where it is not now so subject.
(p) If at any time during the 90-day period after the first date that any of the Shares are consolidatedreleased by you for sale to the public, any rumor, publication, or event relating to or affecting the Company shall occur as a result of which in your reasonable opinion the market price of the Common Stock (including the Shares) has been or is likely to be materially affected (regardless of whether such rumor, publication, or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, promptly consult with Raymxxx Xxxex & Xssociates, Inc. concerning the advisability and substance of, and, if appropriate, disseminate a press release or other public statement reasonably satisfactory to Raymxxx Xxxex & Xssociates, Inc. responding to or commenting on such rumor, publication, or event.
(q) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Shares, or otherwise conduct its business, in such a manner as would require the Company or any Subsidiary (as defined below) to register as an investment company under the Investment Company Act of 1940, as amended.
(r) The Company will maintain a transfer agent and, if necessary under the jurisdiction of its incorporation or the applicable rules of the Nasdaq National Market or any national securities exchange on which the Common Stock is then listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock.
(s) The Company hereby agrees that this Agreement shall be deemed, for all purposes, to have been made and entered into in Pinellas County, Florida. The Company agrees that any dispute hereunder shall be litigated solely in the Circuit Court of the State of Florida in Pinellas County, Florida or in the United States District Court for the Middle district of Florida, Tampa Division, and further agrees to submit itself to the personal jurisdiction of such courts.
Appears in 1 contract
Sources: Underwriting Agreement (Fidelity National Corp /Ga/)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as followsXxxxxxxx:
(a) The Company shall use its best efforts to cause the Registration Statement and To make no amendment or any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus unless Xxxxxxxx is given a copy of such proposed amendment or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copysupplement; to advise Xxxxxxxx, or to which the Representative shall have objected within two (2) business days promptly after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge it receives notice thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission any state, federal or other regulatory authority of any stop order or of any order preventing or suspending the use of any Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or the threatening of any proceeding suspending for any such purpose, or of any request by any regulatory authority for the effectiveness amending or supplementing of the Registration Statement Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectussuspending any such qualification, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment promptly to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to obtain promptly the lifting withdrawal of such order.;
(cb) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will To furnish the Representative Kendrick with copies of any the Prospectus in such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, quantities as the case Xxxxxxxx may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in forcereasonably request, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectusand, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, if any event shall have occurred as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or if it is necessary at any supplement the Prospectus, to notify Xxxxxxxx and upon Xxxxxxxx 's request to prepare and furnish without charge to Xxxxxxxx as many copies as Xxxxxxxx may from time to amend time reasonably request of an amended Prospectus or a supplement to the Prospectus to comply with which will correct such statement or omission or effect compliance;
(c) To use the Act, net proceeds received by it from the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 sale of the Act, each such amendment or supplement Notes pursuant to be satisfactory to Underwriters' Counsel, and this Agreement in the Company will furnish to manner specified in the Underwriters copies Prospectus under the caption "Use of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.Proceeds";
(gd) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every There has been no material news item or article of interest to the financial community in respect of the Companyadverse change, or its affairs which was released any development involving a prospective material adverse change, in the condition, financial or prepared by otherwise, in the earnings, business or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts operations of the Company and its subsidiary subsidiaries, takes as a whole, except as set forth in the Prospectus;
(e) There are consolidatedno legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Prospectus and proceedings that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its respective obligations under this Agreement, the Indenture, or the Notes or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(f) The Company is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, the Company will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(g) Except as described in the Prospectus, (i) the Company has good and marketable title to all real property and good and marketable title to all personal property owned, mortgage notes and debt securities by it which is material to the business of the Company, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company; and (ii) any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material to the Company and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company;
(h) The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or other regulatory authorities necessary to conduct its business as presently conducted, except as described in the Prospectus or where the failure to possess such certificates, authorizations and permits would not, singly or in the aggregate, have a material adverse effect on the Company, taken as a whole; and no officer or representative of the Company has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company, taken as a whole, except as described in the Prospectus; and
(i) The consolidated financial statements of the Company and the related notes thereto included in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the related rules and regulations of the Commission; present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and cash flows of the Company and its consolidated subsidiaries for the periods specified; and have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby (except as noted therein) ; and
(k) No relationship, direct or indirect, exists between the Company or any of its subsidiaries and the directors, officers or managers of the Company that is required by the Act to be described in the Prospectus and that is not so described in such documents.
Appears in 1 contract
Sources: Managing Placement Agent Agreement (Ministry Partners Investment Company, LLC)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A of the of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective 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 as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date 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 the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as 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 as are or may reasonably be required by cause the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.same to
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 thereto, if not effective at the time of execution of this Agreement, to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Securities Act or the Exchange Act before termination of during any time that a prospectus relating to the offering of securities is required to be delivered under the Preferred Shares by the Underwriters Securities Act of which the Representative and 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 within two (2) business days after its receipt thereof or which is not in compliance with the Securities Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Securities Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, ; (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If The Company will use its best efforts to prevent the issuance of any stop or suspension order and if the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.the
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three five (3)-year 5)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as reasonably available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true copies of duly executed, legally binding and enforceable agreements pursuant to which for a period of not less than six (6) months from the effective date of the Registration Statement all officers and directors of the Company holding shares of the Common Stock or securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding will not offer to sell, sell, transfer, hypothecate or otherwise encumber or dispose of any such securities (either pursuant to Rule 144 of the Rules and Regulations or otherwise) without the prior written consent of Josephthal (collectively, the "Lock-up Agreements"). On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers. During the six (6) month period commencing with the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except up to (i) 1,254,444 shares of Common Stock issuable upon exercise of outstanding stock options, (ii) 145,120 shares of Common Stock reserved for future issuance under the Company's 1991 Stock Option Plan and (iii) 635,952 shares of Common Stock issuable upon exercise of outstanding warrants. During the six (6) month period commencing with the effective date of the Registration Statement, the Company shall not file any registration statement with the Securities and Exchange Commission on Form S-8 without the prior written consent of the Representative.
(l) Neither the Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letter to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on Nasdaq or a National Securities exchange and for a period of seven (7) years from the date hereof, and use its best efforts to maintain the Nasdaq quotation or exchange listing of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Representative's request and at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, but in no event more than 30 days from the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Xxxxx'x OTC Manual and to continue such inclusion for a period of not less than seven (7) years.
(s) The Company hereby agrees that it will not for a period of thirteen (13) months from the effective date of the Registration Statement, adopt, propose to adopt or otherwise permit to exist any employee, officer, director, consultant or compensation plan or arrangement permitting the grant, issue or sale of any shares of Common Stock or other securities of the Company (i) in an amount greater than an aggregate of __________ shares of Common Stock, (ii) at an exercise or sale price per share less than the fair market value of the Common Stock on the date of grant or sale, (iii) to any direct or indirect beneficial holder on the date hereof of more than 10% of the issued and outstanding shares of Common Stock, (iv) with the payment for such securities with any form of consideration other than cash, (v) upon payment of less than the full purchase or exercise price for such shares of Common Stock or other securities of the Company.
(t) Until the completion of the distribution of the Shares, and for 25 days thereafter, the Company shall not without the prior written consent of the Representative and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company or its activities or the offering contemplated hereby.
(u) For a period equal to the lesser of (i) seven (7) years from the date hereof, and (ii) the sale to the public of the Representative's Shares, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form SB-2 (or other appropriate form) for the registration under the Act of the Representative's Shares.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall not have objected within two previously approved in writing (2such approval not to be unreasonably withheld or delayed) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the -------- ------- Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders and will deliver to the Representative:Representatives, (i) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its shareholders as such, (ii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange and (iii) from time to time such other information concerning the Company as you may request.
(h) The Company will use its best efforts to list the Stock on the Nasdaq National Market.
(i) every The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the undersigned in accordance with the Rules and Regulations) during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set (except with prior written consent of each of the Representatives), other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(m) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act and the Exchange Act.
(n) Prior to the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(o) Prior to the Closing Dates the Company will issue no press release or other communications directly or indirectly and every material news item or article of interest hold no press conference with respect to the Company, the financial community in respect condition, results of operation, business, prospects, assets or liabilities of the Company, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the Closing Date, the Company will use its affairs which was released best efforts to provide to you copies of each press release or prepared by other public communications with respect to the financial condition, results of operations, business, prospects, assets or on behalf liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
(p) During the period of five (5) years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholder's equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; and
(ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, or the NASD or any additional securities exchange; (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock; and (iv) from time to time, such other information of a public nature concerning the Company as you may reasonably request.
(q) The Company has not distributed and, prior to the later of (i) the Closing Date and (ii) the completion of the distribution of the Stock, will not distribute any future subsidiary) offering material in connection with the offering and sale of the Stock other than the Registration Statement or its businesses which any amendment thereto, any Preliminary Prospectus or the Representative may request. During such three (3)-year periodProspectus or any amendment or supplement thereto, or other materials, if any, permitted by the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedAct.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Securities Act or the Exchange Act before termination of during any time that a prospectus relating to the offering of Securities is required to be delivered under the Preferred Shares by the Underwriters Securities Act of which the Representative Underwriters and Underwriters' Counsel shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters or Underwriters' Counsel shall have objected within two (2) business days after its receipt thereof 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, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Securities Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding 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 for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such 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 fifteenth business day after the effective date of the Registration StatementRegulations.
(d) The Company will give the Representative Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or Underwriters' Counsel shall reasonably object.
(e) The Company will furnish to the Underwriters and Underwriters' Counsel, without charge, three photocopies 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 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, 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.
(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 or the Underwriter's Preferred Shares is required to be delivered under the Securities Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' 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) During As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its securityholders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section ll(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 three at least 12 consecutive months after the effective date of the Registration Statement.
(3i) years If the Company engages in business with the Government of Cuba or with any person or affiliate located in Cuba, and the Company further agrees that if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date hereofthe Registration Statement becomes or has become effective with the Commission or with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information reported in the Prospectus, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Department notice of such business or change, as appropriate, in a form acceptable to the Department.
(j) For so long as the Company is a reporting company under either Section 13 or 15(d) of the Exchange Act, the Company will furnish to its stockholderssecurityholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the RepresentativeUnderwriters 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 annual reports to its securityholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
ii) copies of the Quarterly Report on Form 10-Q or Form 10-QSB;
iii) as soon as they are available, copies of all reports (ifinancial or other) mailed to stockholders;
iv) as soon as they are available, copies of all reports and financial statements filed with the Commission, any state securities commission, the NASD, the NASDAQ Stock Market (NASDAQ), the American Stock Exchange or any other 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 CompanyCompany or any of the Subsidiaries; and
(iivi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiarysubsidiaries) or its their respective businesses which the Representative Underwriters may reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the The foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary Subsidiaries are consolidated, and will be accompanied by similar financial statements for any Subsidiary which is not so consolidated.
(k) For a period of four years after the Closing Date, 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 Securities Act) from time to time under the Securities Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Securities Act, the Exchange Act and the Rules and Regulations.
(l) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants as stated in their letters to be furnished pursuant to Section 7(j) hereof.
(m) The Company shall use its best efforts to maintain the American Stock Exchange listing of the Common Stock.
(n) Until the completion of the distribution of the Notes, neither the Company nor any of the Subsidiaries shall, without the prior written consent of the Underwriters and Underwriters' Counsel (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, 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.
(o) The Company will comply with all provisions of all undertakings contained in the Registration Statement.
(p) For a period ending on the earlier of (i) four years from the date hereof and (ii) the issuance of all of the Underlying Stock, the Company will not take any action or actions which may cause the exemption from registration provided by Section 3(a)(9) of the Securities Act (or any successor provision) to be unavailable for the conversion into Common Stock.
(q) For a period of four years after the effective 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 Blue Sky "Trading Survey" for 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 Common Stock or the Notes are not listed on NASDAQ, the NASDAQ Stock Market or a national securities exchange at the time of such request.
(r) to use the proceeds from the sale of the Notes in the manner described in the Prospectus under the caption "Use of Proceeds."
(s) to 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.
(t) to 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 will not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder.
(u) 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 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 attempt to induce any person to purchase any Notes; 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.
(v) 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.
Appears in 1 contract
Sources: Underwriting Agreement (Heico 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 efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earning statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and at its option with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders and will deliver to the Representative:Representatives, (i) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its shareholders as such, (ii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange and (iii) from time to time such other information concerning the Company as you may request.
(h) The Company will use its best efforts to list the Stock, subject to official notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the Registration Statement.
(i) every The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly financial statements.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of, other than by operation of law, gifts, pledges or dispositions by estate representatives, any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Rules and Regulations) during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set (the "Lock-Up Period"), other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus or the grant of options under the Company's Stock Option Plan as such is described in the Prospectus, provided such options are not exercisable during the Lock-Up Period.
(l) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of Rules and Regulations, the Company will furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(m) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(n) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(o) Prior to each of the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(p) Prior to each of the Closing Dates the Company will issue no press release or other communications directly or indirectly and every material news item or article of interest hold no press conference with respect to the Company, the financial community in respect condition, results of operations, business, prospects, assets or liabilities of the Company, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the first Closing Date, the Company will use its affairs which was released best efforts to provide to you copies of each press release or prepared by other public communications with respect to the financial condition, results of operations, business, prospects, assets or on behalf liabilities of the Company at least simultaneously with the public issuance thereof or such longer advance period as may reasonably be practicable.
(q) During the period of five (5) years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; and
(ii) any additional information as soon as practicable after the filing thereof, copies of a public nature concerning 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 (and iii) as soon as available, copies of any future subsidiary) report or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts communication of the Company and mailed generally to holders of its subsidiary are consolidatedCommon Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement to become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus to comply with the Act or for additional informationany other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which Issuer Free Writing Prospectus to you and counsel for the Company proposes for use by the Underwriters in connection Underwriters, and obtain your consent prior to filing any of those with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as which consent will not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the case may be at Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the 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 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 amendment supplement or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver furnish to each Underwriter who has previously requested Prospectuses, without charge, a copy reasonable number of each such report to the Representative and will deliver to the Representative:copies thereof.
(i) every press release During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and every material news item or article of interest to the financial community in respect 15 of the Company, Exchange Act in the manner and within the time periods required by the Exchange Act.
(j) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or its affairs which was released or prepared by or on behalf qualification of the CompanyShares for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; andprovided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its 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 no event beyond one year after the date hereof.
(iik) any additional information The Company will make generally available to its security holders a consolidated-earning statement (in form complying with the provisions of a public nature concerning Rule 158 under the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year periodAct), if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.which
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 Statements and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration StatementStatements, file any amendment to the Registration Statement Statements or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act Act, the U.K. Companies Xxx 0000, 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 StatementStatements, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement Statements becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement Statements 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 Statements or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration StatementStatements.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement Statements (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the F-1 Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx 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 Statements become 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 Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than forty-five (45) days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statements 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 Statements.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses which the Representative may request. During such three (3)-year five-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary 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 ADSs.
(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 Statements 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 Statements, 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 Statements, 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 Statements, each of the Company's securityholders and holders of securities exchangeable or exercisable for or convertible into Ordinary Shares 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 Ordinary Shares or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any Ordinary Shares (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 Statements, 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 capital stock or any options, rights or warrants with respect to any shares of capital stock of the
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by 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 the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the 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 thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Shares.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gk) During a the period of ending three (3) years after from the date hereof, upon your request, the Company will furnish to its stockholdersyou and to each of the other Underwriters as requested, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, other than clause (iv)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable out-of-pocket costs and expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters) not to exceed $100,000 reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), and each report not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than the filing of a registration statement on Form 10S-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-KSB Up Agreements”).
(o) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Adamis Pharmaceuticals Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, ; (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than forty-five (45) days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twelve (12) months from the effective date of the Registration Statement, each of the Company's stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she will not, directly or indirectly, issue, offer to sell, sell, grant an option for the sale or purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior consent of the Representatives (collectively, the "Lock-up Agreements"). During the 12 month period commencing on the effective date of the Registration Statement, the Company shall not, without the prior written consent of the Representative, sell, contract or offer to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, the Subsidiary, nor any of their respective officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in their letters to be furnished pursuant to Sections 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on Amex and, for a period of five (5) years from the date hereof, use its best efforts to maintain the Amex quotation of the Common Stock to the extent outstanding. (q) For a period of five (5) years from the Closing Date, the Company shall furnish to the Representative at the Company's sole expense, (i) daily consolidated transfer sheets relating to the Common Stock, (ii) the list of holders of all of the Company's securities and (iii) a Blue Sky "Trading Survey" for secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5) business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and (ii) but in no event more than thirty (30) days after the effective date of the Registration Statement, take all necessary and appropriate actions to be included in Standard and Poor's Corporation Descriptions and Xxxxx'x 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
(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 F-1 (or other appropriate form) for the registration under the Act of the Representative's Securities.
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 with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, Statement has become effective (if not effective as amended, becomes effective with of the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A 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 the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of such orderthe Act and with the securities 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 fifteenth business day after reasonable opinion of counsel for the effective date Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly 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 qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance with 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 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, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act and Rule 158 under the Act, each and will advise you in writing when 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 requeststatement has been made so available.
(g) h. During a the period of ending three (3) years after from the date hereofof this Agreement, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or The Nasdaq Stock Market's National Market ("Nasdaq") or any securities exchange 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.
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 if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the 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 the other Underwriters for all out-of- pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters) reasonably incurred by you in connection herewith.
j. The Company will apply the net proceeds from the sale of the Shares to be sold by it under this Agreement in accordance in all material respects with the statements audited by independent public accountants)under the caption "Use of Proceeds" in the Prospectus.
k. If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
l. For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, except to the Underwriters pursuant to this Agreement and except for grants of options pursuant to the Company's stock option plans in effect as of the date of this Agreement, and each report except for the issuance of shares of Common Stock in exchange for shares of common stock of Pharmaceutical Buyers, Inc., pursuant to contracted obligations existing on Form 10-KSB (the date of this Agreement.
m. Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
n. The Company will comply with all provisions of any undertakings contained in the Registration Statement.
o. The Company will not at any time, directly or indirectly take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
p. If at any time during the 90-day period after the first date that any of the Shares are consolidatedreleased by you for sale to the public, any rumor, publication, or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock (including the Shares) has been or is likely to be materially affected (regardless of whether such rumor, publication, or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, promptly consult with 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 years after the date of this Agreement.
r. The Company will timely file with Nasdaq all documents and notices required by Nasdaq of companies that have or will issue securities that are traded in the over-the-counter market and quotations for which are reported by Nasdaq.
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 followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to of the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred Subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may reasonably 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 in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be audited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives, as soon as practicablethey are available, copies of each annual report (including financial of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements audited by of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants), accountants and each other report on Form 10-KSB (or 10-K, as communication furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its stockholders and will deliver to the Representative:
Representatives, (i) every press release as soon as they are available, copies of any other reports or communication (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional information of a public nature concerning reports and financial statements furnished to or filed with the Company (and Commission, or the NASD or any future subsidiary) or its businesses which the Representative may requestnational securities exchange. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to qualify for inclusion, subject to notice of effectiveness on the Nasdaq National Market, the Stock to be issued and sold by the Company.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) The Company will not, without the prior written consent of Ladenburg and Xxxxxxx Bros., offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock during the 180 days following the date of the Prospectus, other than: (i) the Company's sale of Common Stock hereunder, (ii) upon the exercise of stock options granted or issued prior to the date hereof and as described in the Registration Statement and (iii) the gram of stock options pursuant to the Option Pan.
(k) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-B.
(1) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(m) Prior to the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and each of the Subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(n) Prior to the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of the Subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent.
(o) The Company will not at any time, directly or indirectly, take any action designed or intended to stabilize or manipulate the price of any security of the Company, or which caused or resulted in, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company.
(p) Until the expiration of one year from the effective date of the Offering contemplated hereby, the Company shall not grant any options, warrant or other convertible securities or stock purchase rights, pursuant to the Option Plan or otherwise, at an exercise or conversion price below the then applicable fair market value of the security issuable upon exercise or conversion thereof.
(q) The Company will reserve and keep available that maximum number of its authorized but unissued securities which are issuable upon exercise of the Representatives' Warrant outstanding from time to time.
(r) The Company shall deliver to you, at the Company's expense, three (3) bound volumes in form and content acceptable to you, containing the Registration Statement and all exhibits filed therewith, and all amendments thereto, and all other material correspondence, filings, certificates and other documents filed and/or delivered in connection with this offering. The Company shall use its best efforts to deliver such volumes within six (6) months of the First Closing Date.
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 of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly and prepare and file such prospectus or prospectuses as may be necessary to permit compliance with the Commission an appropriate amendment or supplement in accordance with requirements of Section 10 10(a)(3) of the Securities Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gd) During a period of three (3) years after the date hereof, the The Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item Representatives, at or article of interest to before the financial community in respect Closing Dates, signed copies of the CompanyRegistration Statement, or its affairs which was released or prepared by or on behalf of as originally filed with the Company; and
(ii) any additional information of a public nature concerning the Company (Commission, and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.all amendments
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the 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 fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as which consent shall not be unreasonably withheld, delayed or conditioned.
(e) The Company will not make any offer relating to the case may Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be at unreasonably withheld, delayed or conditioned.
(f) The Company will retain in accordance with the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(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 thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof, 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 Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the NASDAQ Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request. For purposes of this paragraph, any document filed electronically with the Commission and publicly available shall be deemed to be furnished to the Underwriters.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, other than clauses (iv) or (v)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith (which fees and expenses shall not exceed $200,000).
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB the Company will not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer, director and shareholder of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waive such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock will be listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (First Guaranty Bancshares, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares Units by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort shall use its best efforts to obtain promptly the lifting prompt withdrawal of such the order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriter, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters Underwriter in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriter or Orrick, Herrington & Sutcliffe LLP ("Underwriter's Counsel"), shall obxxxx.
(e) The Company Xxx Xxxpany shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Underwriter agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Underwriter's Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriter promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Underwriter's Counsel, and the Company will furnish to the Underwriters Underwriter copies of such amendment or supplement as soon as available and in such quantities as the Underwriters Underwriter may request.
(g) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) seven years after the date hereof, in the event the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeUnderwriter:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(i) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(ii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iii) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(iiiv) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Underwriter may request. .
(v) During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(vi) The Company will maintain a Transfer Agent and Warrant Agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock and Redeemable Warrants.
(j) The Company will furnish to the Underwriter's order, without charge, at such place as the Underwriter may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriter may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Underwriter with true copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of 180 days from the effective date of the Registration Statement, the officers and directors of the Company, all holders of shares of Common Stock and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock, agree that it or he or she will not directly or indirectly, issue, offer to sell, grant an option for the sale of, assign, transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of any shares of Common Stock or securities convertible into, exercisable or exchangeable for or evidencing any right to purchase or subscribe for any shares of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial interest therein without the prior written consent of the Underwriter and the Company (the "Lock-up Agreements"
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Sources: Underwriting Agreement (Dynacs Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement thereto becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in subsection 5(e) hereof, of any request change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time. If the Company elects to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act by the close of business in New York on the business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission for such Prospectus in accordance with Rule 424(b) of the Act by the close of business in New York on the business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus of which you shall not previously have been advised (with a reasonable opportunity to review such amendment or for additional information. If supplement) or to which you have reasonably objected after being so advised.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of such orderthe Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and (ii) thereafter from time to time for such period as in the fifteenth business day after reasonable opinion of counsel for the effective date Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Registration StatementShares, the Company will deliver to each Underwriter, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer.
(df) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes cooperate with you and counsel for use by the Underwriters in connection with the offering registration or qualification of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities Shares for offering and sale by the several Underwriters and by dealers under the securities laws of such jurisdictions as the Representative you may reasonably designate and will file such consents to permit the continuance service of sales and dealings therein for as long process or other documents as may be reasonably necessary in order to complete the distribution, and effect such registration or qualification; provided that in no event shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction where it is not now so qualified or file a general or limited consent to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action it is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestsubject.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the Provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the NASD or any securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Selling Shareholders to perform any agreement herein or to comply with any of the terms or provisions hereof, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial statements audited travel expenses and fees and expenses of counsel for the Underwriters but excluding wages and salaries paid by independent you) reasonably incurred by you in connection herewith.
(j) The Company will apply the net proceeds payable to it from the sale of the Shares for the purposes set forth under "Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
(l) For a period of 120 days after commencement of the public accountants)offering of the Shares by the Underwriters, the Company will not, without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc., sell, contract to sell or otherwise dispose of any Common Shares or rights to purchase any Common Shares, except (i) to the Underwriters pursuant to this Agreement, (ii) upon the exercise of currently outstanding warrants and options, and each report on Form 10-KSB (iii) not more than 400,000 Common Shares to be issued in connection with the acquisition of businesses by the Company, provided that the recipients of Common Shares referred to in clause (iii) agree that they will not sell such Common Shares prior to 120 days after the commencement of the public offering of the Shares by the Underwriters.
(m) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing quarterly unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(o) The Company will timely file with the National Association of Securities Dealers Automated Quotation System National Market ("Nasdaq National Market") all documents and notices required by the Nasdaq National Market of companies that have issued securities that are consolidatedtraded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
Appears in 1 contract
Sources: Underwriting Agreement (Continental Waste Industries Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and you promptly and, if requested by you, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. If the Company elects, with the consent of the Representatives, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Prospectus or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission an appropriate supplement or amendment thereto and, in the case of any such amendment, use its best efforts to cause such amendment to become effective as promptly as possible, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement in accordance with Section 10 qualification of the ActShares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In each such amendment or supplement to be satisfactory to Underwriters' Counseljurisdiction in which the Shares shall have been qualified as above provided, and the Company will furnish to make and file such statements and reports in each year as are or may be required by the Underwriters copies laws of such amendment or supplement as soon as available and jurisdiction. If the qualification of the Shares is suspended in such quantities as any jurisdiction, the Underwriters may requestCompany shall so advise you promptly in writing.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou such information concerning the Company, excluding non-public information, as soon you may reasonably request, provided that the Company shall have no obligation to furnish any documents available to the public on EDGAR. During the Prospectus Delivery Period, the Company will file alx xxxuments required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption "Use of Proceeds" in the Prospectus.
(j) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
(k) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing except to the Underwriters pursuant to this Agreement and except for grants of options pursuant to the Company's stock option, stock bonus or other stock plans or arrangements in effect as practicable, each annual report of the date hereof and described in the Prospectus and except for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans.
(including financial statements audited by independent public accountants), and each report on Form 10-KSB (l) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(m) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(n) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(o) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(p) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each the Agents participating in the offering of the Underwriters as followsNotes that:
(a) The Company shall use its best efforts to cause will notify the Registration Statement Agents immediately, and any amendments thereto to become effective with confirm such notice in writing, of (i) the Commission as promptly as practicable and will not at any time, whether before or after the effective date effectiveness of the Registration Statement, file any amendment to the Registration Statement Statement, (ii) the transmittal to the Commission for filing of any amendment or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment pursuant to the Registration Statement becomes effective1934 Act (other than any amendment, (ii) of supplement or document relating solely to securities other than the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purposeNotes), (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and Commission with respect to the Registration Statement or the Prospectus, (viv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If , (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the state securities commission authority initiation of any state shall enter a stop order proceedings for that purpose and (vi) any change in the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company or suspend such qualification at the public announcement by any timenationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain promptly the lifting of such orderthereof at the earliest possible moment.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(db) The Company will give the Representative Agents advance notice of its intention to file or prepare any additional registration statement with respect to the registration of additional Notes, any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which other than an amendment or supplement providing solely for a change in the Company proposes for use interest rate or formula applicable to the Notes or a change relating solely to securities other than the Notes), whether by the Underwriters in connection with the offering filing of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed documents pursuant to Rule 424(b) of the Rules and Regulations)1934 Act or the 1933 Act or otherwise, and will furnish to the Representative with Agents copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior or other documents proposed to be filed or used a reasonable time in advance of such proposed filing or use, as the case may be,, and will not file any such amendment or supplement or other documents in a form to which the Agents or counsel for the Agents shall reasonably object.
(c) The Company will deliver to the Agent as many signed and conformed copies of the Registration Statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Agents reasonably request. The Company will furnish to the Agents as many copies of the Prospectus (as amended or supplemented) as the Agents reasonably request so long as the Agents are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Notes.
(d) The Company will prepare, with respect to any Notes to be sold to or through one or more Agents pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by the Agents and will file such Pricing Supplement pursuant to Rule 424(b) under the 1933 Act not later than the close of business of the Commission on the first business day after the date on which such Pricing Supplement is first used.
(e) The Company shall endeavor Except as otherwise provided in good faithsubsection (l) of this Section 5, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to during the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, term of this Agreement any event shall have occurred occur or condition exist as a result of whichwhich it is necessary, in the opinion of counsel for the Company Agents or Underwriters' Counselcounsel for the Company, to amend or supplement the Prospectus, as then amended or supplemented, includes Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time the Prospectus is delivered to a purchaser, or if it is necessary at any time shall be necessary, in the opinion of either such counsel, to amend or supplement the Registration Statement or the Prospectus in order to comply with the Actrequirements of the 1933 Act or the 1933 Act Regulations, the Company will notify shall give immediate notice, confirmed in writing, to the Representative promptly Agents to cease the solicitation of offers to purchase the Notes in an Agent's capacity as agent and prepare and file with the Commission to cease sales of any Notes an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' CounselAgent may then own as principal, and the Company will furnish promptly amend the Registration Statement and the Prospectus, whether by filing documents pursuant to the Underwriters copies 1934 Act or the 1933 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements.
(f) Except as otherwise provided in subsection (l) of this Section 5, on or prior to the date on which there shall be released to the general public interim financial statement information related to the Company with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, the Company shall furnish such amendment information to the Agents, confirmed in writing, and shall cause the Prospectus to be amended or supplement supplemented to include or incorporate by reference financial information with respect thereto and corresponding information for the comparable period of the preceding fiscal year, as soon well as available such other information and in such quantities explanations as shall be necessary for an understanding thereof or as shall be required by the Underwriters may request1933 Act or the 1933 Act Regulations.
(g) During a period Except as otherwise provided in subsection (l) of three (3) years after this Section 5, on or prior to the date hereofon which there shall be released to the general public financial information included in or derived from the audited financial statements of the Company for the preceding fiscal year, the Company shall furnish such information to the Agents, confirmed in writing, and shall cause the Registration Statement and the Prospectus to be amended, whether by the filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise, to include or incorporate by reference such audited financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent accountants with respect thereto, as well as such other information and explanations as shall be necessary for an understanding of such financial statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) The Company will furnish make generally available to its stockholders, security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering each annual report twelve month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (including financial statements audited by independent public accountants), and as defined in such Rule 158) of the Registration Statement with respect to each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy sale of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:Notes.
(i) every press release The Company will endeavor, in cooperation with the Agents, to qualify the Notes for offering and every material news item sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Agents may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Notes; PROVIDED, HOWEVER, that the Company shall not be obligated to file any general consent to service of process or article to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Company will file such statements and reports as may be required by the laws of interest each jurisdiction in which the Notes have been qualified as above provided. The Company will promptly advise the Agents of the receipt by the Company of any notification with respect to the financial community in respect suspension of the qualification of the Notes for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
(j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or its affairs which was released or prepared by or on behalf the 1934 Act in connection with sales of the Company; andNotes, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) If specified by the applicable Agent or Agents in connection with a purchase of Notes as principal, between the date of the agreement to purchase such Notes and the Settlement Date with respect to such purchase, the Company will not, without the prior written consent of such Agent or Agents, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company (other than the Notes that are to be sold pursuant to such agreement and commercial paper in the ordinary course of business).
(l) The Company shall not be required to comply with the provisions of subsections (e), (f) or (g) of this Section 5 for any period during which (i) the Agents have not agreed with the Company to solicit purchases of Notes in accordance with Section 2(d) or have suspended such solicitation and (ii) no Agent is holding any additional information of a public nature concerning Notes purchased as principal pursuant hereto, until the time the Agents have agreed with the Company (and any future subsidiaryto solicit such purchases of the Notes or have resumed solicitation in accordance with Section 2(d) or its businesses which the Representative may request. During such three (3)-year period, if an Agent shall subsequently purchase Notes from the Company has an active subsidiaryas principal.
(m) The Company will use its best efforts to meet the requirements to qualify as a REIT under the Internal Revenue Code of 1986, as amended (the foregoing financial statements will be on a consolidated basis to "Code") for the extent that the accounts taxable year in which sales of the Company and its subsidiary Notes are consolidatedto occur, unless otherwise specified in the Prospectus.
Appears in 1 contract
Sources: Distribution Agreement (Associated Estates Realty Corp)
Covenants and Agreements of the Company. The Subject to and in accordance with the terms and conditions of this Agreement, the Company covenants undertakes and agrees with and in favour of each of the Underwriters as followsBackstoppers that:
(a) The Company shall use its best efforts to cause will advise each Backstopper, within three Business Days following the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any timeElection Deadline, 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 total number of Offering Shares subscribed for under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and RegulationsSubscription Privilege.
(b) As soon as If a Backstopper (A) has exercised all or part of its Subscription Privilege and has paid the Company Participating Subscriber’s Payment Amount on or before the Participating Subscriber Funding Deadline, and (B) is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus a Commitment Reduction Electing Backstopper whose Backstop Commitment has been filed in accordance with said Rule 430A and when any post-effective amendment reduced to zero, such Backstopper shall not be required to deliver cash or a letter of credit to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order Escrow Agent to comply with its Backstop Purchase Obligation under this Agreement and in no event shall such non-delivery constitute a default 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 failure to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordermeet its obligations hereunder.
(c) The Company shall file will use commercially reasonable efforts to obtain all necessary consents, approvals or exemptions for the Prospectus (in form creation, offering and substance satisfactory to issuance of the Representative) or transmit Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and Backstop Consideration Shares and the Prospectus entering into and performance 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 it of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statementtransactions contemplated herein.
(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 pay all fees and expenses as set out in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulationsparagraph 7(b)(x), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,.
(e) The Company Issuer shall endeavor in good faith, in cooperation file a Form D with the Representative, at or prior U.S. Securities Commission with respect to the time the Registration Statement becomes effectiveapplicable Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and Backstop Consideration Shares that are issued pursuant 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.Regulation D.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after After the date hereof, the Company will furnish not incur any new indebtedness prior to its stockholdersthe Implementation Date except for indebtedness that is incurred in the ordinary course of business and that is not material.
(g) From the date hereof through the earlier of the Implementation Date and termination of this Agreement, the Company will notify Goodmans, in writing, within two Business Days of receipt of any notice, written demand, request, inquiry or other correspondence (in each case, both formal or informal) by any Governmental Entity concerning the Share Offering or the issuance, or threatened or contemplated issuance, by any Governmental Entity of any cease trading or similar order or ruling relating to any securities of the Company. Any notice delivered pursuant to this Section 3(g) shall contain reasonable details of the notice, demand, request, inquiry, correspondence, order or ruling in question.
(h) The Issuer shall take all action as may be required so that, as soon as practicableof the Election Deadline and the Implementation Date, each annual report of the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and Backstop Consideration Shares shall be conditionally approved for listing on the TSX or such other Designated Offshore Securities Market acceptable to the Majority Consenting Noteholders, subject only to receipt of customary final documentation.
(including financial statements audited i) The Issuer shall take all action as may be required so that, as of the Implementation Date, each of the Offering Shares, Accrued Interest Offering Shares, Backstopped Shares and Backstop Consideration Shares (i) shall be freely tradable in Canada (provided that the trade is not a “control distribution” as defined in Canadian Securities Laws, no unusual effort is made to prepare the market or to create a demand for the security that is the subject of the trade, no extraordinary commission or consideration is paid to a person or company in respect of the trade, and if the selling security holder is an insider or officer of the Issuer, the selling security holder has no reasonable grounds to believe that the Issuer is in default of Canadian Securities Laws) and (ii) shall be eligible for immediate resale on or through the facilities of the TSX or such other Designated Offshore Securities Market acceptable to the Majority Consenting Noteholders pursuant to Rule 904 of Regulation S (subject to execution and delivery by independent public accountantsthe seller of a Declaration in the form attached as Schedule C).
(j) Prior to the Implementation Date, the Issuer shall enter into the Registration Rights Agreement and offer all of the Participating Subscribers and Backstoppers the opportunity to become party to the Registration Rights Agreement.
(k) The Company shall use best efforts to the extent possible under applicable Laws to maintain a listing on a Designated Offshore Securities Market and its status as a reporting company in the United States under Section 12 of the Securities Exchange Act of 1934 (or, if the Issuer is not the Company, the Issuer will use its best efforts to the extent possible under applicable Laws to be a successor to the Company and shall make all necessary filings under such Act so that as of the Implementation Date the Issuer to the extent possible under applicable Laws will succeed to the Company’s status as a reporting company in the United States under Section 12 of such Act and thereafter shall use best efforts to maintain such status), including using best efforts to prepare and each report file with the U.S. Securities Commission in a timely manner all required reports and other filings.
(l) The Company (and the Issuer if not the Company) agrees to remove (and cause any registrar and transfer agent to remove) any legend on Form 10-KSB a share certificate required by the U.S. Securities Act to permit sales made in reliance on Rule 904 of Regulation S upon delivery of a signed declaration in the form as set out on Schedule C (or such other form as the Issuer and the seller may agree) and the Company (and the Issuer if not the Company) agrees to implement similar procedures for any shares held through the Canadian Depository for Securities (CDS) of the Depositary Trust Company (DTC).
(m) Assuming the delivery by each of the Backstoppers of, and the accuracy of representations and warranties of each of the Backstoppers provided in the Rep Letters and herein, the Company shall take all action as may be necessary so that the Share Offering and the other transactions contemplated in this Agreement will be effected in accordance with Securities Laws.
(n) As of the date hereof, the Company’s filings made under Securities Laws on or after September 10-K, 2012, do not contain any material misstatements or omissions.
(o) Within three Business Days following the earlier of the termination of this Agreement or the Effective Time, to the extent not required to enable a Backstopper to comply with its Backstop Purchase Obligation, the Escrow Agent will return to such Backstopper the cash deposit (or, as applicable, such portion thereof as may remain after its application towards the Backstop Payment Amount as provided in Section 6(b)(i) hereof) or the letter of credit (or, as applicable, such portion thereof as may be undrawn after payment of the Backstop Payment Amount as provided in Section 6(b)(ii) hereof), as applicable, that was provided by that Backstopper to the Escrow Agent pursuant to Section 2(c).
(p) Following implementation of the Plan, the net proceeds of the Share Offering shall be used by the Issuer for general corporate purposes as determined and approved by the new Board of Directors in place on completion of and in accordance with the Transaction.
(q) Following a request by Goodmans or the Backstoppers, the Company shall, to the extent permitted by Law and the terms of any confidentiality obligations to which the Company is subject, and subject to and in accordance with the terms of the Advisor Confidentiality Agreement and applicable Noteholder Confidentiality Agreement, provide Goodmans or such Backstoppers, or any of them, as the case may be), including each amendment theretowith reasonable access to the Company’s and its subsidiaries’ books and records (other than books or records that are subject to solicitor-client privilege) for review in connection with the Share Offering; provided that the provision of access to books and records shall be made or undertaken in a manner that minimizes disruption to the Company and its business and operations.
(r) On the Implementation Date, a copy the Non-Defaulting Backstoppers shall receive their pro rata share of any report 11,111,111iii New Jaguar Common Shares (based on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy fraction that the Backstop Commitment of each such report Non-Defaulting Backstopper represents of the total Backstop Commitments of all Non-Defaulting Backstoppers) in consideration for acting as a Backstopper (collectively, the “Backstop Consideration Shares”). For the purpose of determining the number of Backstop Consideration Shares each Non-Defaulting Backstopper is due to the Representative and will deliver to the Representative:
receive, (i) every press release the Backstop Commitment of each Non-Defaulting Backstopper set out on its signature page hereto shall be used without any reduction, regardless of whether a Backstopper is a Commitment Reduction Electing Backstopper; and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) for avoidance of doubt, an Objecting Backstopper shall not be entitled to receive any additional information Backstop Consideration Shares and shall not be considered a Non-Defaulting Backstopper. ______________________ iii Assuming the issuance of 111,111,111 New Jaguar Common Shares in the aggregate. If a public nature concerning different number of New Jaguar Common Shares are issued, the number of Backstop Consideration Shares to be issued will be adjusted proportionally.
(s) The Company will use reasonable best efforts to close the Transaction.
(t) Each of the Company and the Subsidiaries covenants and agrees jointly and severally to be liable to and to indemnify and save harmless each of the Backstoppers (other than any Defaulting Backstopper), together with their respective subsidiaries and affiliates and their respective present and former shareholders, officers, directors, employees, advisors and agents (each an “Indemnified Party”) and, collectively, the “Indemnified Parties”) from and against any future subsidiaryand all liabilities, claims, actions, proceedings, losses (other than indirect loss), costs, damages and expenses of any kind (including, without limitation, the reasonable costs of defending against any of the foregoing, but excluding any and all liabilities, claims, actions, proceedings, losses, costs, damages and expenses of any kind that are attributable to the gross negligence, fraud or wilful misconduct of any Indemnified Party) to which any Indemnified Party may become subject or its businesses which the Representative may request. During such three (3)-year period, if suffer or incur in any way in relation to or arising from a breach by the Company has an active subsidiaryor the Subsidiaries of any of their obligations, covenants, representations or warranties hereunder. If any matter or thing contemplated in the preceding sentence (any such matter or thing being a “Claim”) is asserted against any Indemnified Party or if any potential Claim contemplated hereby comes to the knowledge of any Indemnified Party, the foregoing financial statements will be on a consolidated basis Indemnified Party shall notify the Company as soon as reasonably possible of the nature and particulars of such Claim (provided that any failure to so notify shall not affect the Company’s and the Subsidiaries’ liability hereunder except to the extent that the accounts Company or the Subsidiaries are prejudiced thereby and then only to the extent of any such prejudice) and the Company shall, subject as hereinafter provided, be entitled (but not required) to assume at its expense the defence of any suit brought to enforce such Claim; provided that the defence of such Claim shall be conducted through legal counsel reasonably acceptable to the Indemnified Party and that no admission of liability or settlement in respect of any such Claim may be made by the Company or the Subsidiaries (other than a settlement that includes a full and unconditional release of the Indemnified Parties without any admission or attribution of fault or liability on their part) or the Indemnified Party without, in each case, the prior written consent of the other, such consent not to be unreasonably withheld. In respect of any Claim, the Indemnified Party shall have the right to retain separate or additional counsel to act on its behalf in the defence thereof, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless (i) the Company fails to assume and diligently and actively prosecute the defence of the Claim on behalf of the Indemnified Party within ten Business Days after the Company has received notice of the Claim, (ii) the Company and the Indemnified Party shall have mutually agreed to the retention of the separate or additional counsel, or (iii) the named parties to the Claim (including any added third or impleaded party) include both the Indemnified Party and the Company and/or the Subsidiaries, and the Indemnified Party shall have been advised by its counsel that representation of both parties by the same counsel would be inappropriate due to the actual or potential differing interests between them, in which case the Company shall not have the right to assume the exclusive defence of the Claim and the Company and the Subsidiaries shall be liable to pay the reasonable fees and expenses of the separate or additional counsel for the Indemnified Party.
(u) The covenants of the Company set out in Sections 3(k), 3(l), 3(p) and its subsidiary are consolidated3(t) shall survive the implementation of the Transaction (including the Share Offering) for the benefit of the Backstoppers.
Appears in 1 contract
Covenants and Agreements of the Company. 5.1 Of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Company's condition (financial or other), business, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission 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, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in such quantities as any jurisdiction where it is not now so subject. In the Underwriters may requestevent 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), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the 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 Securities Exchange Act of 1934, as amended, and the published rules and regulations of the Commission thereunder (collectively, the "Exchange Act") in the manner and within the time periods required by the Exchange Act.
(i) During the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq Stock Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Selling Shareholder 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 and the Selling Shareholder, jointly and severally, agree, in addition to and not in derogation of any remedy that may be available to you, to reimburse you and the other Underwriters for all reasonable out-of-pocket expenses (including financial reasonable travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith, such reimbursement not to exceed $75,000 in the aggregate.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(m) For a period of 180 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Shares whether any such swap or transaction is to be settled by independent public accountantsdelivery of Common Shares or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and except for grants of options and issuances of Common Shares in the ordinary course of business pursuant to the Company's stock option, stock bonus or other employee benefit plans or arrangements in effect as of the date hereof and referred to in the Prospectus (a "Permitted Share Issuance"), and each report on Form 10-KSB .
(n) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any 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 prior to 12 months after the Closing , directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Shares to facilitate the sale or resale of any of the Shares.
(q) For a period of three years, the Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Shares are listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Shares.
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 Company shall use its best efforts Company, subject to cause the Registration Statement and any amendments thereto to become effective Section 5.1(b), will comply with the Commission as promptly as practicable requirements of Rule 430B and will not at any time, whether before or after notify the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writingRepresentatives promptly, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes or new registration statement relating to the Shares shall become 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 to the institution of proceedings for that purposeProspectus shall have been filed, (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, (ivii) of the receipt of any comments from the Commission; and Commission relating to the Registration Statement or the Prospectus, (viii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus Prospectus, including any document incorporated by reference therein or otherwise deemed to be a part thereof, or for additional information, (iv) of the issuance of any stop order suspending the effectiveness of the Registration Statement or such new registration statement, or notice objecting to its use pursuant to Rule 401(g)(2) of the Securities Act Regulations, or any order preventing or suspending the use of the preliminary prospectus or the Prospectus or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or, to the Company’s knowledge, threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement or (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares. If The Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission or and, in the state securities commission authority of any state shall enter a stop order or suspend event that it was not, it will promptly file such qualification at any time, the prospectus. The Company will make every reasonable effort to prevent the issuance of any stop, prevention or suspension order and, if any such order is issued, to obtain promptly the lifting thereof. The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). This subsection (a) shall only apply to the Company for so long as the distribution of the Shares purchased hereunder has not been completed or so long as the delivery of a prospectus is required in connection with such orderoffering or sale of the Shares hereunder.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(db) The Company will give the Representative Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or new registration statement relating to the Shares or any amendment or supplement to either the Prospectus (including any revised prospectus which General Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish or make available to the Representative with Representatives copies of any such amendment or supplement no later than two (2) business days after its receipt thereof document a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object on a timely basis unless, in the judgment of the Company, filing or use of such document is necessary to comply with any law. This subsection (b) shall only apply to the Company for so long as the distribution of the Shares purchased hereunder has not been completed or so long as the delivery of a prospectus is required in connection with such offering or sale of the Shares hereunder.
(ec) The Company shall endeavor in good faith, in cooperation with the Representative, at has furnished or prior will deliver to the time Representatives and counsel for the Underwriters, without charge, signed copies of the Original Registration Statement becomes effective, and any new registration statement relating to qualify the Securities for offering Shares and sale under the securities laws each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and signed copies of such jurisdictions as the Representative may designate to permit the continuance all consents and certificates of sales and dealings therein for as long as may be necessary to complete the distributionexperts, and shall make such applicationswill also deliver to the Representatives, file such documents without charge, a conformed copy of the Original Registration Statement and furnish such information as may be required any new registration statement relating to the Shares and each amendment thereto (without exhibits) for such purpose; provided, howevereach of the Underwriters. However, the Company shall not be required Company’s obligation to qualify as a foreign corporation or file a general or limited consent deliver such registration statements to service of process in any such jurisdiction. In each jurisdiction where such qualification the Underwriters shall be effected, deemed satisfied to the Company will, unless the Representative agrees extent that such action is not at registration statements are (1) available on XXXXX and (2) identical to 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 qualificationXXXXX version.
(fd) During The Company has delivered to each Underwriter, without charge, as many copies of the time preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus is (or but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”) would be) required to be delivered under the Securities Act, such number of copies of the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus 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. thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) If at any time when a prospectus relating to is (or but for the exception afforded by Rule 172 would be) required by the Securities or the Underwriter's Preferred Shares is required Act to be delivered under in connection with sales of the ActShares, any event shall have occurred occur or condition shall exist as a result of whichwhich it is necessary, in the opinion of counsel for the Company Underwriters or Underwriters' Counselfor the Company, to amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus in order that the same will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein (solely in the case of the General Disclosure Package and the Prospectus, in the light of the circumstances existing at the time it is delivered to a purchaser) not misleading, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus in order to comply with the requirements of the Securities Act or the Securities Act Regulations or to file a new registration statement relating to the Securities, the Company will promptly (1) notify the Representatives of any such event or condition, (2) prepare and file with the Commission, subject to Section 5.1(b), (i) such amendment or supplement as then amended may be necessary to correct such statement or supplementedomission or to comply with such requirements and (ii) such new registration statement to satisfy such filing requirement, (3) use its best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Shares) and (4) furnish to the Underwriters such number of copies of such amendment, supplement or new registration statement as the Underwriters may reasonably request. If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Shares), the preliminary prospectus or the Prospectus included, includes or would include an untrue statement of a material fact or omitted, omits or 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 under which they were madeprevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or if it is necessary supplement, at any time to amend the its own expense, such Issuer-Represented Free Writing Prospectus to comply with eliminate or correct such conflict, untrue statement or omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the Actconditions in Section 8 hereof.
(f) As soon as practicable, the Company will notify the Representative promptly make generally available to its security holders 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 an earnings statement or statements of such amendment or supplement as soon as available the Company and in such quantities as its subsidiaries which will satisfy the Underwriters may requestprovisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(g) The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Shares and will 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 Offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) During a the period of three 90 days from the date of the Prospectus (3the “Lock-Up Period”), without the prior written consent of Xxxxxxx, Xxxxx & Co., the Company (i) years after will not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any announcement of any of the foregoing, (ii) will not establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Exchange Act and the Exchange Act Regulations) with respect to any Relevant Security, and (iii) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will obtain an undertaking (“Lock-Up Agreement”) in substantially the form of Annex II hereto of each of its executive officers and directors listed on Schedule II attached hereto not to engage in any 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 (w) pursuant to the Company’s Dividend Reinvestment and Stock Purchase Plan; (x) upon the exercise of currently outstanding options; (y) upon the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof, each as described in the Registration 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 or any person that is prohibited pursuant to the foregoing, except for registration statements on Form S-8 relating to employee benefit plans or Form S-4 relating to corporate reorganizations or other transactions under Rule 145 of the Securities Act Regulations.
(i) The Company shall use its best efforts to have the Shares admitted and authorized for listing on the NYSE, and maintain such listing, and satisfactory evidence of such admission and authorization for listing shall be provided to the Representatives, if obtained.
(j) The Company will furnish not take, directly or indirectly, any action designed to its stockholdersor that would constitute or that might reasonably be expected to cause or result in, as soon as practicableunder the Exchange Act or otherwise, each annual report a violation of Regulation M under the Exchange Act or stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Stock.
(including financial statements audited k) The Company, during the period when a prospectus is (or but for the exception afforded by independent public accountants)Rule 172 would be) required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the Exchange Act Regulations.
(l) The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each report Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission other than Issuer-Represented Free Writing Prospectuses listed on Form 10Annex I hereto. Each such Issuer-KSB (Represented Free Writing Prospectus and each other free writing prospectus consented to by the Representatives or 10-Kby the Company and the Representatives, as the case may be, is hereinafter individually referred to as a “Permitted Free Writing Prospectus.” Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. Notwithstanding the foregoing, the Company consents to the use by any Underwriter of a free writing prospectus that contains only (a)(i) information describing the preliminary terms of the Shares or the Offering, (ii) information meeting the requirements of Rule 134 of the Securities Act Regulations or (iii) information that describes the final terms of the Shares or their offering or (b) other customary information that is neither “issuer information,” as defined in Rule 433, nor otherwise an Issuer-Represented Free Writing Prospectus.
(m) If, immediately prior to the third anniversary of the effectiveness of the Original Registration Statement (the “Renewal Date”), including each amendment theretoany Shares remain unsold by any Underwriter, the Company will, prior to the Renewal Date and subject to Section 5.1(b), promptly notify the Representatives and file, if it has not already done so, a copy new shelf registration statement or, if applicable, an automatic shelf registration statement relating to such Shares, and, if such registration statement is not an automatic shelf registration statement, will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Date and to notify the Representatives of any report on Form 10-QSB (its effectiveness, and will take all other reasonable actions necessary or 10-Qappropriate to permit the public offer and sale of such Securities to continue as contemplated in the expired registration statement relating to such Securities. References herein to the “Registration Statement” shall include such new shelf registration statement or automatic shelf registration statement, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:.
(in) every press release and every material news item or article of interest to The Company will apply the financial community in respect net proceeds from the sale of the Company, or its affairs which was released or prepared by or on behalf Shares as set forth under the caption “Use of Proceeds” in the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiaryRegistration Statement, the foregoing financial statements will be on a consolidated basis to General Disclosure Package and the extent that the accounts of the Company and its subsidiary are consolidatedProspectus.
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 NBC Multimedia as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration StatementClosing Date, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall NBC Multimedia not previously have been advised and furnished with a copy, or to which the Representative NBC Multimedia shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative NBC Multimedia and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (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 the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to NBC Multimedia to the Representativeextent that such Prospectus relates to NBC Multimedia) 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 the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative NBC Multimedia notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations)Prospectus, and will furnish the Representative you with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which you or your counsel shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.statements
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the shares of Common Stock and shares of Convertible Preferred Shares Stock by the Underwriters of which the Representative Representatives shall not previously have been advised and furnished with a copy, or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Representatives and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, ; (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeRepresentatives) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeRepresentatives, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Representatives with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representatives or Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx 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 or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Representatives promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than forty-five (45) days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of each of the Company and Ajax's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the RepresentativeRepresentatives:
i. concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
ii. concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
iii. as soon as they are available, copies of all reports (ifinancial or other) mailed to stockholders;
iv. as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
v. every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(ii) vi. any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Representatives may reasonably request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common
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 with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to 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 the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or supplement to which the Representative shall have objected within two (2) business days after its receipt thereof 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 shall have been filed (if required) with the Commission and, if the provisions of pursuant to Rule 430A promulgated under the Act will be relied upon, 424(b) or when the Prospectus has any Rule 462(b) Registration Statement shall have been filed in accordance with said Rule 430A and when the Commission, (2) when, prior to termination of the Offering, any post-effective 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 the state securities commission authority of any state 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 fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the 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 form and substance satisfactory to the Underwriter) that will correct such statement, omission or conflict or effect such compliance.
(d) The Company has complied and will comply with Section 10 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, the Company will make generally available to its security holders and to the Underwriter an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the .
(f) The Company will furnish to the Underwriters Underwriter and counsel for the Underwriter, without charge, signed copies of such amendment 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 as soon as available and in such quantities thereto as the Underwriters 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, will maintain such qualifications in effect so long as required for the distribution of the Shares and will 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 Offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) During a the period of three 30 days from the date of the Prospectus (3the “Lock Up Period”), without the prior written consent of the Underwriter, the Company (i) years after will not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any announcement of any of the foregoing, (ii) will not establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Relevant Security, and (iii) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will obtain 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 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 (w) pursuant to the Company’s Dividend Reinvestment and Stock Purchase Plan; (x) upon the exercise of currently outstanding options; (y) upon the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof, each as described in the Registration 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 or any person that is prohibited pursuant to the foregoing, except for registration statements on Form S-8 relating to employee benefit plans or Form S-4 relating to corporate reorganizations or other transactions under Rule 145. Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period the Company issues an earnings release 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 furnish release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by the immediately preceding paragraph shall continue to its stockholdersapply 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 soon as practicableapplicable, each annual report (including financial statements audited by independent public accountants)unless the Underwriter waives, in writing, such extension. The Company will provide the Underwriter and each report officer and director of the Company listed on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy Schedule II attached hereto with prior notice of any report on Form 10such announcement that gives rise to an extension of the Lock-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:Up Period.
(i) every press release The Company shall use its best efforts to have the Shares admitted and every material news item or article authorized for listing on the NYSE, and satisfactory evidence of interest such admission and authorization for listing shall be provided to the financial community in respect Underwriter, if obtained.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the Company, or its affairs which was released or prepared by or on behalf price of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts security of the Company to facilitate the sale or resale of the Common Stock.
(k) The Company will apply the net proceeds from the sale of the Shares as set forth under the caption “Use of Proceeds” in the Pricing Disclosure Package. The Underwriter, severally and its subsidiary are consolidatednot jointly, covenants and agrees with the Company that the Underwriter will not use or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) without the prior written consent of the Company if the Underwriter’s use of or reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act).
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 several Underwriters as followsthat:
(a) The Prior to the termination of the offering of the Securities, the Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Preliminary Prospectus or the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy for their review prior to filing and will not file any document such proposed amendment or supplement to which the Representative reasonably objects. Subject to the foregoing sentence, if the filing of the Prospectus is otherwise required under Rule 424(b), the Act Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed therein and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Exchange Act before Commission, (ii) when, prior to termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copySecurities, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes shall have been filed or become effective, (iiiii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or of any additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution or threatening of proceedings any proceeding for that purpose, purpose and (iiiv) of the issuance receipt by the Commission or by any state securities commission Company of any proceedings for notification with respect to the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, initiation or the threatening, threatening of any proceeding for that such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(ivb) If, at any time when a prospectus relating to the Securities is required to be delivered under the 1933 Act and the 1933 Act Regulations promulgated thereunder, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations promulgated thereunder, the Company promptly will (i) notify the Representative of any such event, (ii) prepare and file with the Commission, subject to Section 4(a)(i), an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any supplemented Prospectus to each of the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend Underwriters in such qualification at any time, the Company will make every effort to obtain promptly the lifting of quantities as each such orderUnderwriter may reasonably request.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(fd) During As soon as practicable, but in any event not later than 45 days after the time when a prospectus end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the Effective Date occurs (90 days in the event that the end of such fiscal quarter is required to be delivered under the Actend of the Company’s fiscal year), the Company shall use all reasonable efforts make generally available to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of whichits security holders, in the opinion of counsel for manner specified in Rule 158 under the Company or Underwriters' Counsel1933 Act, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the Prospectus, as then amended or supplemented, includes an untrue statement provisions of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light Section 11(a) of the circumstances 1933 Act and Rule 158 under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the 1933 Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(ge) During a period of three (3) two years after from the date hereof, the Company will furnish to its stockholders, as soon as practicable, each stockholders annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the Representative:
(i1) concurrently with furnishing the above-mentioned annual reports to its stockholders, statements of income of the Company for each year, in the form furnished to the Company’s stockholders and certified by the Company’s principal financial or accounting officer;
(2) concurrently with furnishing the above-mentioned annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders’ equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(3) after the end of each fiscal quarter (excluding the fourth fiscal quarter), a balance sheet of the Company as of March 31, June 30 and September 30 of each year, together with statements of income, stockholders’ equity, and cash flows of the Company for the corresponding fiscal quarter or quarters, as the case may be;
(4) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(5) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission or securities exchange on which any class of securities of the Company is listed; and
(6) every press release and every material news item or article of interest to the financial community in respect of the Company, Company or its affairs affiliates which was released or and prepared by or on behalf of the Company; and. Delivery to the Representative will be deemed to have been made to the extent the Company has filed the above-referenced materials (including those in Section 4(d) above) with the Commission.
(f) For a period of one year from the Closing Date, the Company shall use its best efforts to furnish to the Representative, at the Representative’s request and at the Company’s sole expense, on a quarterly basis (i) a readily available list of the securities positions of participants in the Depository Trust Company in the Common Stock and (ii) any additional information as provided from the transfer agent to the Company, a list of a public nature concerning holders of all of the Company’s securities.
(g) The Company (will furnish to the Representative and any future subsidiary) or its businesses which Underwriters’ Counsel, without charge, at such place as the Representative may designate, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the 1933 Act and the 1933 Act Regulations promulgated thereunder, as many copies of the Preliminary Prospectus and the Prospectus and any supplement thereto as the Representative may reasonably request.
(h) At the Execution Time, the Underwriter shall have received an agreement substantially in the form of Exhibit A hereto signed by the persons listed on Schedule C hereto (the “Lock-Up Agreements”). During such three (3)-year periodOn or before the Closing Date, if the Company has shall deliver instructions to the Transfer Agent authorizing it to place appropriate stop transfer orders on the Company’s ledgers, subject to the terms and conditions of the Lock-Up Agreements.
(i) The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the 1933 Act relating to, any shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the Representative for a period of 90 days (“Lock-Up Period”) after the Execution Date (as defined herein); provided, however, that if (i) the Company issues an active subsidiaryearnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the foregoing financial statements restrictions will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representative waives, in writing, such extension; the Company will provide the Representative and any co-managers and each stockholder subject to the Lock-Up Period pursuant to the lock-up letters described in Section 4(h) with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period. In addition, the foregoing restriction will not apply to the filing of a registration statement on Form S-8 under the 1933 Act to register securities issuable under the Company’s existing employee benefit plans, issuance of Common Stock upon exercise of an existing option or warrant or conversion of existing preferred stock, or the Company’s granting of awards pursuant to the Company’s existing employee benefit plans.
(j) Prior to the completion of the distribution of the Securities by the Underwriters, neither the Company nor any of its officers or directors nor any of their respective affiliates (within the meaning of the Exchange Act) will take, and the Company will use its reasonable best efforts to prevent any 5% stockholder from taking, directly or indirectly, any action designed to, or which might in the future reasonably be expected to, cause or result in, under the Exchange Act and the rules and regulations thereunder or otherwise, stabilization or manipulation of the price of the Common Stock or any other reference security with respect to the Common Stock, whether to facilitate the sale or resale of the Securities or otherwise, and the Company will, and will use reasonable efforts to cause each of its affiliates to, comply with all applicable provisions of Regulation M in connection with the distribution of the Securities.
(k) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under “Use of Proceeds” in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(l) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the 1933 Act, the Exchange Act and the rules and regulations promulgated thereunder and all such reports, forms and documents filed will comply as to form and substance in all material respects with the applicable requirements under the 1933 Act, the Exchange Act and the rules and regulations promulgated thereunder.
(m) The Company shall cause the Securities to be listed, subject to notice of issuance, on a consolidated basis the NASDAQ Global Market and shall use its reasonable best efforts to maintain the listing of the Common Stock by the NASDAQ Global Market for so long as shares of Common Stock are listed on the NASDAQ Global Market.
(n) The Company has not made and will not make, without the prior written consent of the Representative, any offer relating to the extent Securities using supplementary offering materials, including any materials that would constitute an “issuer free writing prospectus”, as defined in Rule 405 under the accounts of the Company and its subsidiary are consolidated1933 Act.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the Underwriters as followsUnderwriter that:
(a) The Company shall will advise the Underwriter 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 Underwriter promptly of any request by the Commission for any amendment of or supplement to the Registration Statement and any amendments thereto to become effective with or the Commission as promptly as practicable Prospectus or for additional information, and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Underwriter a copy, reasonable time prior to the proposed filing or use thereof or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange 1933 Act or and the Rules and Regulations.
(b) As soon Regulations or the 1934 Act and the rules and regulations of the Commission hereunder, 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 with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, Underwriter promptly when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,.
(eb) The Company shall endeavor in good faith, in cooperation will prepare and file with the RepresentativeCommission, at promptly upon the request of the Underwriter, 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 Underwriter may be necessary to complete enable the distributionUnderwriter to continue the distribution of the Securities and, in the case of any such amendments to the Registration Statement, will use its best efforts to cause the same to become effective as promptly as possible. The Company will promptly file all reports and shall make such applications, file such documents and furnish such any definitive proxy or information as may be required for such purpose; provided, however, the Company shall not be statements required to qualify be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so long as a foreign corporation or file a general or limited consent to service the delivery of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance connection with the provisions hereof and offering or sale of the Prospectus, or any amendments or supplements thereto. Securities.
(c) If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, 1933 Act any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act1933 Act or the Rules and Regulations, the Company will promptly notify the Representative Underwriter thereof and will prepare an amended or supplemented Prospectus (in form and substance reasonably satisfactory to counsel to the Underwriter) or, with the consent of counsel to the Underwriter, make an appropriate filing pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission; and, in case the 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 and at the expense of the 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 Underwriter, at or before the First Closing Date, signed copies of the Registration Statement and all amendments thereto (including all financial statements and exhibits thereto and all documents incorporated or deemed to be incorporated by reference therein) and will deliver to the Underwriter 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 Underwriter may reasonably request. The Company will deliver or mail to or upon the order of the Underwriter 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 Underwriter 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 Underwriter 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 Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 0000 Xxx) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act, covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Underwriter 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 Underwriter may reasonably designate and at the request of the Underwriter 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 with such statements and reports as are or may be required of it as the Commission an appropriate amendment or supplement in accordance with Section 10 issuer of the Act, each Securities to continue such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and qualifications in such quantities effect for so long a period as the Underwriters Underwriter may requestreasonably request for the distribution of the Securities.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information, in reasonable detail which may be unaudited. During a the period of three (3) five years after from the date hereof, the Company will furnish deliver to its stockholders, as soon as practicable, the Underwriter copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:Underwriter, as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such and, as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange.
(h) The Company will use its best efforts to effect the listing of the Securities on the NYSE.
(i) every press release The Company will use the net proceeds received by it from the sale of the Securities sold by it in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(j) Immediately following the execution of this Agreement, the Company will prepare a prospectus supplement, dated the date hereof (the "Prospectus Supplement"), containing the public offering price of the Securities, the underwriting discounts and every material news item commissions, the plan of distribution of the Securities and such other information as may be required by the 1933 Act or article the Rules and Regulations or as the Underwriter and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) of interest the Rules and Regulations copies of such Prospectus Supplement and, if required by Rule 424(b) or requested by the Underwriter, the Base Prospectus.
(k) During the period of 60 days from the date of this Agreement, the Company agrees that it will not, without the prior written consent of the Xxxxxx Xxxxxxx & Co. Incorporated, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the financial community 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in respect whole or in part, directly or indirectly, the economic consequence of ownership of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock, other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, or (B) any shares of Common Stock issued by the Company pursuant to any employee stock option, director stock option or dividend reinvestment plan of the Company, or its affairs which was released or prepared by or on behalf the shareholder rights plan of the Company; and, referred to in the Prospectus.
(iil) any additional information The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code.
(m) In accordance with the provisions of a public nature concerning the Cuba Act, if applicable, and without limitation to the provisions of Section 6 hereof, the Company will indemnify the Underwriter against any and all losses, claims, damages, liabilities and expenses (and including attorneys' fees) arising out of or based upon any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if violation by the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidatedCuba Act.
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 with or the Commission as promptly as practicable Prospectus or for addi tional information, and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing or use thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange 1933 Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the . The Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, Representatives promptly when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,.
(eb) The Company shall endeavor in good faith, in cooperation will prepare and file with the RepresentativeCommission, at promptly upon the request of the Representatives, any amendments or prior supplements to the time the Registration Statement becomes effective, to qualify or the Securities for offering and sale under Prospectus which in the securities laws opinion of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as Representatives may be necessary to complete enable the distributionseveral Underwriters to continue the distribution of the Securities and, in the case of any such amendments to the Registration Statement, will use its best efforts to cause the same to become effective as promptly as possible. The Company will promptly file all reports and shall make such applications, file such documents and furnish such any definitive proxy or information as may be required for such purpose; provided, however, the Company shall not be statements required to qualify be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so long as a foreign corporation or file a general or limited consent to service the delivery of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance connection with the provisions hereof and offering or sale of the Prospectus, or any amendments or supplements thereto. Securities.
(c) If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, 1933 Act any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act1933 Act or the Rules and Regulations, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented Prospectus (in form and substance reasonably satisfactory to counsel to the Underwriters) or, with the consent of counsel to the Underwriters, make an appropriate filing pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission; and, in case any Underwriter is required to deliver a prospectus relating to the Securities nine months or more after the date of this Agreement, the Company upon the request of the Representatives and at the expense of such Underwriters will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will deliver to the Representatives, at or before the Closing Date, signed copies of the Registration Statement and all amendments thereto (including all financial statements and exhibits thereto and all documents incorporated or deemed to be incorporated by reference therein) and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements and all documents incorporated or deemed to be incorporated by reference therein but without exhibits, and of all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and there after from time to time during the period when delivery of a prospectus relating to the Securi ties is required under the 1933 Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented, as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any -------- ------- prospectus required for use nine months or more after the date of this Agreement, shall be borne by the Underwriters required to deliver such prospectus. The copies of the Registration Statement and each amendment thereto and the copies of any preliminary prospectus and any preliminary prospec tus supplement and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 0000 Xxx) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act, covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Securities to be qualified for sale under the securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate and at the request of the Representatives will make such applications and furnish such information as may xxxxxxx xxx be required of it as the issuer of the Securities for that purpose; provided, however, that the -------- ------- Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file with such statements and reports as are or may be required of it as the Commission an appropriate amendment or supplement in accordance with Section 10 issuer of the Act, each Securities to continue such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and qualifications in such quantities effect for so long a period as the Underwriters Representatives may requestreasonably request for the distribution of the Securities.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information, in reasonable detail which may be unaudited. During a the period of three (3) five years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, as soon as practicableupon request, to each of the other Underwriters, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:Representatives, as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such and, as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange.
(h) The Company will use the net proceeds received by it from the sale of the Securities sold by it in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(i) every press release and every material news item or article Immediately following the execution of interest to this Agreement, the financial community in respect Company will prepare a prospectus supplement, dated the date hereof (the "Prospectus Supplement"), containing the public offering price of the CompanySecurities, or its affairs which was released or prepared by or on behalf the underwriting discounts and commissions, the plan of distribution of the Company; Securities and such other information as may be required by the 1933 Act or the Rules and Regulations or as the Representatives and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) of the Rules and Regulations copies of such Prospectus Supplement and, if required by Rule 424(b), the Base Prospectus.
(iij) any additional information of a public nature concerning During the period beginning on the date hereof and continuing through and including the Closing Date, the Company (and will not offer, sell, contract to sell or otherwise dispose of any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts debt securities of the Company or any of its subsidiaries which are substan tially similar to the Securities (other than the Securities) or any securities convertible into or exchangeable or exercisable for any debt securities of the Company or any of its subsidiaries which are substantially similar to the Securities or any rights, warrants or options to purchase any debt securities of the Company or any of its subsidiaries which are substantially similar to the Securities, without your prior written consent.
(k) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code.
(l) In accordance with the provisions of the Cuba Act, if applicable, and its subsidiary are consolidatedwithout limitation to the provisions of Section 6 hereof, the Company will indemnify each Underwriter against any and all losses, claims, damages, liabilities and expenses (including attorneys' fees) arising out of or based upon any violation by the Company of the Cuba Act.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters 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 with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus unless MP Securities is given a copy of such proposed amendment or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copysupplement; to advise MP Securities, or to which the Representative shall have objected within two (2) business days promptly after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge it receives notice thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission any state, federal or other regulatory authority of any stop order or of any order preventing or suspending the use of any Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or the threatening of any proceeding suspending for any such purpose, or of any request by any regulatory authority for the effectiveness amending or supplementing of the Registration Statement Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectussuspending any such qualification, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment promptly to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort use its best efforts to obtain promptly the lifting withdrawal of such order.;
(cb) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the To furnish MP Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any the Prospectus in such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, quantities as the case MP Securities may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in forcereasonably request, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectusand, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, if any event shall have occurred as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or if it is necessary at any supplement the Prospectus, to notify 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 this Agreement in the Company will furnish to manner specified in the Underwriters copies Prospectus under the caption “Use of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.Proceeds”;
(gd) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every There has been no material news item or article of interest to the financial community in respect of the Companyadverse change, or its affairs which was released any development involving a prospective material adverse change, in the condition, financial or prepared by otherwise, in the earnings, business or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts operations of the Company and its subsidiary subsidiaries, taken as a whole, except as set forth in the Prospectus;
(e) There are consolidatedno legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in the Prospectus and proceedings that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its respective obligations under this Agreement, the Indenture, or the Notes or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(f) The Company is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, the Company will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(g) Except as described in the Prospectus, (i) the Company has good and marketable title to all real property and good and marketable title to all personal property 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 proposed to be made, of such property by the Company; and (ii) any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material to the Company and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company;
(h) The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or other regulatory authorities necessary to conduct its business as presently conducted, except as described in the Prospectus or where the failure to possess such certificates, authorizations and permits would not, singly or in the aggregate, have a material adverse effect on the Company, taken as a whole; and no officer or representative of the Company has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company, taken as a whole, except as described in the Prospectus; and
(i) The consolidated financial statements of the Company and the related notes thereto included in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the 1933 Act and the related rules and regulations of the Commission; present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and cash flows of the Company and its consolidated subsidiaries for the periods specified; and have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby (except as noted therein); and
(k) No relationship, direct or indirect, exists between the Company or any of its owners, managers, directors, officers, employees, representatives, or agents that is required by the 1933 Act to be described in the Prospectus and that is not so described in the Prospectus.
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 of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares Securities by the Underwriters of which the Representative Underwriters and Underwriters' Counsel shall not previously have been advised and furnished with a copy, or to which the Representative Underwriters or Underwriters' Counsel shall have objected within two (2) business days after its receipt thereof except if deemed necessary by counsel for the Company, in which case the Underwriters shall have the right to terminate this Agreement upon prompt notice to the Company), or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriters and as soon as practicable confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such orderorder or suspension.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) Underwriters or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (), or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than on or before the Commission's close of business on date it is required to be filed under the earlier of (i) Act and the second business day following the execution Rules and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration StatementRegulations.
(d) The Company will give the Representative Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which that the Company proposes for use by the Underwriters in connection with the offering of the Securities which that differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or Underwriters' Counsel shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate identified on Exhibit C to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, provided the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its securityholders (including Bondholders), in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of three (3) years at least 12 consecutive months after the effective date hereofof the Registration Statement.
(h) So long as any of the Bonds remain outstanding, the Company will furnish to its stockholdersBondholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report other reports required to be delivered pursuant to the Representative Indenture, and will deliver to Brookstreet Securities Corporation, as representative for the RepresentativeUnderwriters:
(i) concurrently with furnishing such quarterly reports to its securityholders, statements of income of the Company for each quarter in the form furnished to the Company's securityholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its securityholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any state securities commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of each of the Company, Company and the Subsidiaries or its their respective affairs which was released or prepared by or on behalf of the CompanyCompany or any of the Subsidiaries; and
(iivi) any additional information of a public nature concerning the Company or any of the Subsidiaries (and any future subsidiarysubsidiaries) or its their respective businesses which the Representative Underwriters may request. During such three (3)-year period, if the Company has an active subsidiarysubsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent and, if necessary under the laws of the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock, and also for the Bonds.
(j) The Company will furnish to the Underwriters or on the Underwriters' order, without charge, at such place as the Underwriters may designate, copies of the Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such reasonable quantities as the Underwriters may request.
(k) Neither the Company nor any of the Subsidiaries nor any of their respective executive officers directors, principal stockholders or affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company in violation of the Exchange Act.
(l) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "USE OF PROCEEDS" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire or redeem any securities issued by the Company, provided that this covenant shall not restrict the Company's ability to redeem the Securities pursuant to their terms.
(m) The Company shall timely file all such reports, forms or other documents as may be required (including, but not limited to, a Form SR as may be required pursuant to Rule 463 under the Act) from time to time under the Act, the Exchange Act and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act and the Rules and Regulations.
(n) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Company and the Subsidiaries (which in no event shall be as of a date more than 30 days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants as stated in their letters to be furnished pursuant to Section 6(i) hereof.
(o) The Company shall, as soon as practicable, but in no event later than five business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities and the Underlying Stock.
(p) Until the completion of the distribution of the Securities, neither the Company nor any of the Subsidiaries shall, without the prior written consent of the Underwriters and Underwriters' Counsel, issue, directly or indirectly, any press release or other communication or hold any press conference with respect to the Company, any of the Subsidiaries, their respective activities or the offering contemplated hereby, other than trade releases issued in the ordinary course of the Company's business consistent with past practices with respect to the Company's operations.
(q) For any period during which any of the Bonds are outstanding, the Company will not take any action or actions which may cause the exemption from registration provided by Section 3(a) of the Act (or any successor provision) to be unavailable for the conversion of the Bonds into Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Ilx Inc/Az/)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock as contemplated herein and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly and prepare and file such prospectus or prospectuses as may be necessary to permit compliance with the Commission an appropriate amendment or supplement in accordance with requirements of Section 10 10(a)(3) of the Securities Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gd) During a period of The Company will deliver to the Representatives, at or before the Closing Date, three (3) years copies of the Registration Statement (including photocopies of the original signatures of the officers and directors who signed the Registration Statement), as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date hereof, of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will furnish make generally available to its stockholders, stockholders as soon as practicable, each annual report but not later than fifteen (including financial statements audited 15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by independent public accountants), the Underwriters and each report on Form 10-KSB (or 10-K, by dealers under the securities laws of such jurisdictions as the case Representatives may be), including each amendment thereto, a copy designate and at the request of any report on Form 10-QSB (the Representatives will make such applications and furnish such consents to service of process or 10-Q, other documents as may be required of it as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect issuer of the CompanyStock for that purpose; provided, however, that the Company shall not be required to qualify to do business or its affairs which was released or prepared by or on behalf to file a general consent (other than that arising out of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) offering or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and its subsidiary file such statements and reports as are consolidated.or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is used, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. 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 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 the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such quantities as Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the Underwriters may requestdate hereof.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) During the period of three (3) ending five years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq Stock Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, in which case the provisions of this paragraph shall not apply), or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(m) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and each report on Form 10-KSB except for issuance, sale or grant of options or shares of Common Stock pursuant to the Company's stock option plans or arrangements in effect as of the date hereof and described in the Prospectus and except for issuances of shares of Common Stock upon the exercise of options under such plans.
(n) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
Appears in 1 contract
Covenants and Agreements of the Company. The Company In addition to all covenants --------------------------------------- and agrees with each agreements of the Underwriters as followsCompany set forth in the Loan Documents, which are incorporated herein by this reference, the Company hereby agrees:
(a) The Company shall use its best efforts To do all acts that may be necessary to cause maintain, preserve and protect the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.Collateral;
(b) As soon as the Company is advised Not to use or obtains knowledge thereofpermit any Collateral to be used unlawfully or in violation of any provision of this Security Agreement, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective any other agreement with the Commission and, if Agent and/or the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes 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 ProspectusLenders related hereto, or any amendment Requirement of Law or supplement thereto, or Contractual Obligation affecting the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.Collateral;
(c) The Company shall file the Prospectus (in form To pay promptly when due all taxes, assessments, charges, encumbrances and substance satisfactory to the Representative) Liens now or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.hereafter imposed upon or affecting any Collateral;
(d) The Company will give To appear in and defend any action or proceeding which may affect its title to or 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 Agent's interest on behalf of the Securities which differs from Lenders in the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,Collateral;
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at Not to surrender or prior lose possession of (other than to the time Agent), sell, encumber, lease, rent, or otherwise dispose of or transfer any Collateral or right or interest therein except as expressly provided herein and in 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 distributionother Loan Documents, and shall make such applications, file such documents to keep the Collateral free of all levies and furnish such information as may be required for such purposesecurity interests or other Liens or charges except those approved in writing by the Agent and the Lenders; provided, however, the Company that, unless an Event of Default shall not have occurred and 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 effectedcontinuing, the Company willmay, unless in the Representative agrees that such action is not at ordinary course of business, sell or lease any Collateral consisting of inventory and transfer funds from deposit accounts included in 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.Collateral;
(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 To account fully for 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 promptly deliver to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of whichAgent, in the opinion form received, all documents, chattel paper, instruments and agreements constituting Collateral hereunder and all proceeds of counsel the Collateral received, all endorsed or assigned to the Agent or in blank, as requested by the Agent, and until so delivered all such documents, instruments, agreements and proceeds shall be held by the Company in trust for the Company or Underwriters' CounselLenders, 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 separate from all other property 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.Company;
(g) During a period To keep separate, accurate and complete records of three (3) years after the date hereof, Collateral and to provide the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), Agent and each report on Form 10-KSB (or 10-K, of the Lenders with such records and such other reports and information relating to the Collateral as the case Agent or any Lender may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report reasonably request from time to the Representative and will deliver to the Representative:time;
(i) every press release To keep the records concerning the Collateral at the location(s) referred to in Paragraph 9 below and every material news item or article not to remove such records from such ----------- location(s) without the prior written consent of interest the Agent;
(j) To keep the Collateral consisting of inventory at the location(s) referred to in Paragraph 9 below prior to the financial community sale thereof in respect the ordinary ----------- course of the Company, or its affairs which was released or prepared by or on behalf of the Companybusiness; and
(iik) To keep the Collateral in good condition and repair and not to cause or permit any additional information of a public nature concerning the Company (and any future subsidiary) waste or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts unusual or unreasonable depreciation of the Company and its subsidiary are consolidatedCollateral.
Appears in 1 contract
Sources: Credit Agreement (Franchise Mortgage Acceptance Co)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 11 12 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object prior to the proposed filing in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or reasonable opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock as contemplated hereby and which complies with the Securities Act and the Rules and Regulations and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly and prepare and file such prospectus or prospectuses as may be necessary to permit compliance with the Commission an appropriate amendment or supplement in accordance with requirements of Section 10 10(a)(3) of the Securities Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gd) During a period of three (3) years after the date hereof, the The Company will furnish deliver to its stockholdersthe Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as soon as practicableoriginally filed with the Commission, each annual report (and all amendments thereto including all financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment exhibits thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article Representatives such number of interest to the financial community in respect copies of the CompanyRegistration Statement, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During including such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company but without exhibits, and its subsidiary are consolidated.all
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 497 of the Securities Act Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Securities Act Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for such purposes, and will use its best efforts to prevent the issuance of any such stop order, and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Acts. The Company will advise the Representative and confirm Representatives promptly of receipt by the notice in writing, (i) when Company or any representative or attorney of the Registration Statement, as amended, becomes effective with Company of any other communication from the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment relating to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the CommissionCompany, as the case may be at if received during the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus Prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Securities Act, or (ii) the Registration Statement, any Preliminary Prospectus, the Prospectus or the transactions contemplated by this Agreement.
(b) The Company will promptly prepare and file with the Commission any amendments or supplements to the Registration Statement or the Prospectus which in the judgment of the Company or in the reasonable opinion of the Representatives may be necessary to enable the several Underwriters to continue the distribution of the Shares and will use its best efforts to cause the same to become effective as promptly as possible.
(c) If at any time after the effective date of the Registration Statement when a prospectus relating to the Shares is required to be delivered under the Securities Act any event shall have occurred relating to or affecting the Company or any of the Subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the ActActs, the Company will promptly notify the Representative promptly Representatives thereof and will prepare and file an amended or supplemented prospectus which will correct such statement or omission.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, copies of the Registration Statement as originally filed with the Commission Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Shares is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request.
(e) The Company will make generally available to its shareholders not later than 45 days after the end of the period covered thereby, an appropriate amendment or supplement in accordance earnings statement of the Company (which need not be audited) that shall comply with Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, Act and cover a period of at least 12 consecutive months beginning not later than the first day of the Company's fiscal quarter next following the Effective Date.
(f) The Company will furnish to its shareholders annual reports containing financial statements audited by independent certified public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) five years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders and will deliver to the Representative:
Representatives, (i) every press release and every material news item as soon as they are available, copies of any other reports (financial or article of interest other) which the Company shall publish or otherwise make available to the financial community in respect of the Companyits shareholders as such, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional reports and financial statements furnished to or filed with the Commission or any national securities exchange or the Nasdaq National Market and (iii) from time to time such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which as the Representative Representatives may reasonably request. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its subsidiary shareholders generally. Separate financial statements shall be furnished for Subsidiaries whose accounts are consolidatednot consolidated but which at the time are significant subsidiaries as defined in the Securities Act Rules and Regulations.
(g) The Company will use its best efforts to cause the Shares to be duly appropriate for quotation on the Nasdaq National Market prior to the Closing Date.
(h) The Company will maintain a transfer agent and registrar for its Common Stock.
(i) The Company will not, without the prior written consent of First Colonial, offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Securities Act Rules and Regulations) during the 180 days following the date of the Prospectus first filed pursuant to Rule 497(b), (c) or (h), other than (i) the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of stock options which are outstanding on the Closing Date or described in the Prospectus and (ii) the Company's issuance of stock options which are described in the Prospectus.
(j) The Company will apply the net proceeds from the sale of the Shares as set forth in the description under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will supply the Representatives with copies of all written correspondence to and from, and all documents issued to and by, the commission in connection with the registration of the Shares under the Securities Act and the Nasdaq National Market.
(l) Prior to the Closing Dates, the Company will furnish to the Representatives, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(m) Prior to the Closing Dates, unless required under the Acts or the Rules and Regulations, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Shares, without the prior written consent of the Representatives, which shall not be unreasonably withheld. For a period of 12 months following the Closing Date, the Company will use its best efforts to provide to the Representatives copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least 24 hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
(n) During the period of five years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters, (i) as soon as practicable after the end of each fiscal year, copies of the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, shareholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent certified public accountants, (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other report filed by the Company with the Commission, or the Nasdaq National Market or any national securities exchange, (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock and (iv) all public reports and all reports and financial statements furnished by the Company to the Commission pursuant to the Investment Company Act and the Investment Company Act Rules and Regulations thereunder.
(o) The Company agrees to retain First Colonial as a financial advisor for the Company for a period of two (2) years from and after the date of the Prospectus, at a fee of $3,000 per month, plus out-of-pocket expenses; such fee, aggregating $72,000, shall be due and payable in full at the closing of the Shares.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities 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 the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Securities, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the 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 thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securities, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Securities in any jurisdiction is suspended, the Company shall so advise you promptly in writing. 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 commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gk) During a the period of ending three (3) years after from the date hereof, upon your request, the Company will furnish to its stockholdersyou and to each of the other Underwriters as requested, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, other than clause (iv)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable out-of-pocket costs and expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters) not to exceed $100,000 reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), and each report not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the term of such securities), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than the filing of a registration statement on Form 10S-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-KSB Up Agreements”).
(o) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Securities.
(r) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
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 (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A of the of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective as soon as practicable after the execution of this Agreement, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments from the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or reasonable opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company, upon the request of the Representatives and at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act; provided, however, that the requirements of this Section 4(c), except the notification provision hereof, shall be suspended in the event that, and for only so long as, there exist pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes that public disclosure will have a material adverse effect on such developments or events.
(d) The Company will deliver to the Representatives, at or before the Closing Date, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre-effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use its best efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) During a period of three (3) years after the date hereof, the The Company will furnish to its stockholdersstockholders annual reports containing financial statements certified by independent public accountants and will make available to its stockholders quarterly summary financial information in reasonable detail which may be unaudited. During the period of five (5) years from the date hereof, so long as the Company remains a reporting company under the Exchange Act, the Company will deliver to the Representatives and, upon request, to each of the Underwriters: (i) as soon as practicablepracticable after the end of each fiscal year (the first such fiscal year being 1998), copies of each annual report (including financial of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements audited by of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants), and each other report furnished by the Company to its stockholders; (ii) copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such; (iii) as soon as practicable after the filing thereof, each proxy statement, Annual Report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report Quarterly Report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report Current Report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such K or other report to or financial statement filed by the Representative and will deliver to Company with the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the CompanyCommission, or its affairs which was released the NASD or prepared by or on behalf of the Companyany securities exchange; and
and (iiiv) any additional press releases and such other information of a public nature concerning as the Company (and any future subsidiary) or its businesses which the Representative may requestpublicly disseminates. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations and for which separate financial statements are required under the Rules and Regulations.
(h) The Company will use its best efforts to maintain the listing of the Stock on the New York Stock Exchange.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) For so long as a prospectus relating to the Stock is required to be delivered under the Securities Act, prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Rules and Regulations) during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set, other than the Company's sale of Common Stock hereunder, the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and the grant of options under the Company's stock option plan described in the Prospectus; provided, however, that the Company may issue and deliver shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock in connection with any acquisition of, or joint venture or other collaborative arrangement with, another company if the terms of issuance provide that such Common Stock or securities convertible into or exercisable or exchangeable for Common Stock shall not be sold prior to the expiration of the 180-day period hereinabove referenced.
(l) Prior to filing with the Commission any reports on Form SR pursuant to Rule 463 of the Rules and Regulations, the Company will furnish a copy thereof to counsel for the Underwriters and receive and consider its comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(m) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(n) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(o) Prior to each of the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(p) Except as required by applicable law, prior to each of the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent. For so long as a prospectus relating to the Stock is required to be delivered under the Securities Act, the Company will use its reasonable efforts to provide to you copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that 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 the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to in the judgment of the Company or the Representative be required by the Representative, pursuant to Rule 424(b)(4)) not later than Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Shares that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the 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 thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Shares.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gk) During a the period of ending three (3) years after from the date hereof, upon your request, the Company will furnish to its stockholdersyou and to each of the other Underwriters as requested, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, other than clause (iv)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable out-of-pocket costs and expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters) not to exceed $100,000 reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the “Lock-Up Period”), and each report not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the term of such securities), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company (other than the filing of a registration statement on Form 10S-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-KSB Up Agreements”).
(o) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
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 use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement and any amendments thereto to has become effective with and the Commission as promptly as practicable time and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Securities Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Securities Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company or any amendment subsidiaries thereof, taken as a whole, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the ActSecurities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will notify make every reasonable effort to obtain the Representative promptly and prepare withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 the provisions of Rule 430A and in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and any such Issuer Free Writing Prospectus in the manner and within the time period required by Rule 433. As used in this Agreement, “subsidiaries” shall mean all of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, wholly-owned and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available partially-owned direct and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect indirect subsidiaries of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus Supplement or the Prospectus has been filed in accordance with said Rule 430A Supplement and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A, 430B or 430C under the Act is employed, when the Prospectus Supplement 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, any Preliminary Prospectus Supplement, the Prospectus Supplement or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) below, of any request by material change in the Company’s condition (financial or other), business, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement (as then amended or supplemented) untrue in any material respect as of the date made 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 Supplement, 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 Supplement (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any amendment to stop order suspending the effectiveness of the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any timeStatement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus Supplement, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus Supplement 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 shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement, the Base Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus (including Supplement, the Prospectus Supplement or any revised prospectus which the Company proposes for use by the Underwriters in connection Issuer Free Writing Prospectus to you and your counsel and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the Base Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement 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 it may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission 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 any Preliminary Prospectus Supplement. 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 Supplement, of any Preliminary Prospectus Supplement 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 the Prospectus Supplement 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 Supplement 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 any Preliminary Prospectus Supplement, the Prospectus Supplement 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 Supplement 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 Supplement (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 Supplement 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 Prospectus Supplements, 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 time periods required by the Underwriters may requestExchange Act.
(gj) During The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus Supplement, 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 use its best efforts to continue such qualifications, registrations and exemptions in effect for a period of three (3) two years after the date hereof, the .
(k) The Company will furnish make generally available to its stockholderssecurity holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicablepracticable after the end of such period, each annual report which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) If this Agreement shall be terminated by the Company 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 the Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives) reasonably incurred by the Representatives in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus Supplement.
(n) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus Supplement (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10-Kenter into any transaction or device that is designed to, as or could be expected to, result in the case may bedisposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than 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 convertible securities, options, warrants or rights), including each amendment theretoor sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a copy of any report on Form 10-QSB (or 10-Q, as the case may be)registration statement, including any amendment thereto and each current report on Form 8-Kamendments, including any amendment thereto, and will promptly deliver a copy of each such report with respect to the Representative and will deliver registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or (4) publicly disclose the intention to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect do any of the Companyforegoing, or its affairs which was released or prepared by or in each case without the prior written consent of the Representatives on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (Underwriters, and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts cause each officer and director of the Company set forth on Schedule IV 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”); 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 Representatives, on behalf of the Underwriters, waive such extension in writing.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(o) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(p) The Company will timely file with NASDAQ all documents and its subsidiary notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on The NASDAQ Global Market.
Appears in 1 contract
Sources: Underwriting Agreement (Carrols Restaurant Group, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares Securities to the public by the Underwriters Underwriter of which the Representative Underwriter shall not previously have been advised and furnished with a copy, or to which the Representative Underwriter shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative Underwriter and confirm the notice same in writing, (i) when the Registration Statement, as amended, becomes effective, when any post-effective with amendment to the Commission Registration Statement becomes effective and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective430A, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the outcome of which may result in the suspension of the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of any proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the 14 any state securities commission regulatory authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriter) with the Commission, or transmit the Prospectus by a means reasonably calculated to result in filing the same with the Commission Commission, pursuant to Rule 424(b)(1) of the Rules and Regulations (or, if applicable and if consented to by the Underwriter, pursuant to Rule 424(b)(4) of the Rules and Regulations) within the time period specified in Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriter, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement).
(d) The Company will give the Representative Underwriter notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of any of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriter with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such amendment or supplement to which the Underwriter or Orrixx, Xxrrxxxxxx & Xutcxxxxx XXX, its counsel ("Underwriter's Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriter, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriter may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distributiondistribution contemplated hereby, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative Underwriter agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Exchange Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, Regulations so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If If, at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Underwriter's Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus prospectus to comply with the Act, the 15 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' 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 Underwriter, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three seven (37) years after the date hereof, the Company will furnish to its stockholdersshareholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), ) and each unaudited quarterly report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative earnings and will deliver to the RepresentativeUnderwriter:
i) concurrently with furnishing such quarterly reports to the Commission statements of income of the Company for such quarter in the form furnished to the Company's shareholders and certified by the Company's principal financial and accounting officer;
ii) concurrently with furnishing such annual reports to its shareholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, shareholders' equity and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of the Company's independent certified public accountants;
iii) as soon as they are available, copies of all reports (ifinancial or other) mailed to shareholders;
iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in respect of the Company, Company or its affairs which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiarysubsidiaries) or its businesses business which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.Underwriter may
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 will furnish promptly to the Initial Purchasers and counsel for the Initial Purchasers, without charge, as many copies of the Offering Memorandum (and of any amendments or supplements thereto) 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 its best efforts to cause of the Registration Statement Offering Memorandum, and any amendments thereto to become effective and supplements thereto, in connection with the Commission as promptly as practicable and will not at any time, whether before or after the effective date Exempt Resales of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and RegulationsNotes.
(b) As soon as The Company will notify Deutsche Bank Securities Inc. promptly, and confirm such advice in writing, of any of the following events which (A) make any statement of a material fact made in the Offering Memorandum false or misleading in any material respect or (B) if not disclosed in the Offering Memorandum, would constitute a material omission therefrom:
(i) any filing made by the Company of information relating to the offering of the Notes with any securities exchange or any other regulatory body in the United States or any other jurisdiction, and
(ii) prior to the completion of the placement of the Notes by the Initial Purchasers as evidenced by a notice in writing from the Initial Purchasers to the Company, any material adverse change in the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and of the Subsidiaries taken as a whole, except as set forth in the Offering Memorandum. In such event, or if prior to the completion of the placement of the Notes by the Initial Purchasers as evidenced by a notice in writing from the Initial Purchasers to the Company, any event shall occur as a result of which it is advised necessary, in the reasonable opinion of the Company, its counsel, the Initial Purchasers or obtains knowledge thereofcounsel for the Initial Purchasers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances then existing, the Company will advise forthwith amend or supplement the Representative Offering Memorandum by preparing and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective furnishing to each Initial Purchaser an 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 Prospectusamendments of, or any amendment a supplement or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any timesupplements to, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus Offering Memorandum (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Company or Underwriters' Counsel, the ProspectusInitial Purchasers) so that, as then so amended or supplemented, includes the Offering Memorandum will not include an 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 light of the circumstances existing at the time it is delivered to a Subsequent Purchaser, not misleading.
(c) The Company agrees that if the delivery of the Offering Memorandum is required at any time in connection with the sale of the Notes and if at such time any events shall have occurred as a result of which the Offering Memorandum as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were mademade when the Offering Memorandum 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 Memorandum in order to comply with the Actany law, the Company will notify the Representative Deutsche Bank Securities Inc. immediately thereof, and promptly and prepare and file with furnish to the Commission Initial Purchasers an appropriate amendment amended Offering Memorandum or a supplement to the Offering Memorandum so that statements in accordance with Section 10 the Offering Memorandum, 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 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 6 hereof.
(d) The Company agrees to not amend or supplement the Offering Memorandum without the consent of the Initial Purchasers, which consent shall not be satisfactory to Underwriters' Counselunreasonably withheld, and to promptly advise the Initial Purchasers when any document filed under the Exchange Act which is incorporated into the Offering Memorandum shall have been filed with the Commission.
(e) The Company will agrees, during the one-year period following the Closing Date, to furnish to the Underwriters Initial Purchasers, upon request, all reports and other communications furnished to shareholders and copies of all reports, documents, information and financial statements filed with the Commission or any national securities exchange on which any class of securities of the Company shall be listed; provided, however, that the Company shall not be required to furnish any such amendment reports, documents, information or supplement as soon as financial statements which is available and through the Commission's EDGAX xxxvice or any such reports, documents, information or financial statements which are filed confidentially.
(f) The Company will use the proceeds from the sale of the Notes in such quantities as the Underwriters may requestmanner described in the Offering Memorandum.
(g) During a period The Company will, in connection with the offering of three the Notes and consistent with its course of conduct in preparing the Offering Memorandum, make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers.
(3h) years The Company will 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 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, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report part to the Representative and will deliver to delivery of the Representative:Notes.
(i) every press release and every material news item or article of interest to the financial community in respect None of the Company, or its affairs which was released or prepared by or on behalf of affiliates (as defined in Rule 501(b) under the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiarySecurities Act) or its businesses which any person (other than the Representative may request. During such three (3)-year periodInitial Purchasers and their respective affiliates, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.as
Appears in 1 contract
Sources: Purchase Agreement (Tekelec)
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 with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement or any registration statement filed pursuant to Rule 462(b) under the Act relating to the Registration Statement is filed or becomes effective, (ii) 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 purposesuch purposes, (iv) of the receipt of any comments from the Commission; and (v) within the period of time referred to in Section 5(e) below, of any request by change in the 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 supplements to the state securities commission authority Registration Statement or Prospectus which, in the opinion of any state shall enter a stop order counsel of the several Underwriters may be necessary or suspend such qualification at any time, advisable in connection with the Company will make every effort to obtain promptly distribution of the lifting of such orderShares by the Underwriters.
(cd) The Company shall file has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Prospectus (in form and substance satisfactory Prepricing Prospectus. The Company consents to the Representative) or transmit the Prospectus by a means reasonably calculated to result use, in filing accordance with the Commission pursuant to Rule 424(b)(1) (or, if applicable Act and if consented to the securities or "blue sky" laws of the jurisdictions in which the Shares are offered by the Representativeseveral Underwriters and by dealers, pursuant prior to Rule 424(b)(4)the date of the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(e) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable (but in no event later than 48 hours from the execution and (iidelivery of this Agreement) and thereafter from time to time for such period as in the fifteenth business day after reasonable opinion of counsel for the effective date Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer, and for so long a period as you may request for the distribution of the Registration 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, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly prepare and, subject to Sections 5(a) and prepare and 5(c) 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) 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 and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act, and will advise you in writing when such statement has been so made available.
(h) During a the period of three (3) ending five years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each annual 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. The Company will file Form SR as required by the Act.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except Section 11), or if this Agreement shall be terminated by the Underwriters because of 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 financial 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 maximum amount of $50,000.
(j) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the statements audited by independent public accountants)set forth under the caption "Use of Proceeds" in the Prospectus.
(k) If information is omitted from the Registration Statement pursuant to Rule 430A under the Act, the Company will timely file the Prospectus or a term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) For a period of 180 days after the date of the Prospectus as first filed with the Commission pursuant to Rule 424(b) under the Act, without the prior written consent of Raymxxx Xxxex & Xssociates, Inc., the Company will not, directly or indirectly, issue, sell, contract to sell, offer or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, except (i) to the Underwriters pursuant to this Agreement, (ii) pursuant to and each report on Form 10-KSB in accordance with the Company's stock option plans described in the Prospectus, or (iii) pursuant to the exercise or 10-Kconversion of warrants, stock options, preferred stock or convertible debentures issued and outstanding at the time of effectiveness of the Registration Statement and described in the Registration Statement.
(m) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary Subsidiaries (as defined below) for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(o) The Company will not, directly or indirectly, take any action that would constitute or any action designed, or which might reasonably be expected to cause or result in or constitute, under the Act or otherwise, stabilization nor manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(p) 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 period of five years after the date hereof.
(q) For so long as the Company's Common Stock is listed therewith, the Company will comply with the filing and other requirements of the Nasdaq National Market.
(r) If at any time during the 90-day period after the first date that any of the Shares are consolidatedreleased by you for sale to the public, any rumor, publication, or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock (including the Shares) has been or is likely to be materially affected (regardless of whether such rumor, publication, or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you of advising the Company to the effect set forth above, promptly consult with Raymxxx Xxxex & Xssociates, Inc. concerning the advisability and substance of, and, if appropriate, disseminate a press release or other public statement reasonably satisfactory to you responding to or commenting on such rumor, publication, or event.
(s) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Shares, or otherwise conduct its business, in such a manner as would require the Company or any Subsidiary (as defined below) to register as an investment company under the Investment Company Act of 1940, as amended.
(t) The Company will maintain a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of the Nasdaq National Market or any national securities exchange on which the Common Stock is then listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock.
(u) The Company hereby agrees that this Agreement shall be deemed, for all purposes, to have been made and entered into in Pinellas County, Florida. The Company agrees that any dispute hereunder shall be litigated solely in the Circuit Court of the State of Florida in Pinellas County, Florida or in the United States District Court for the Middle district of Florida, Tampa Division, and further agrees to submit itself to the personal jurisdiction of such courts.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and Underwriter promptly and, if requested by the Underwriter, will confirm the notice such advice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the 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 fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which Issuer Free Writing Prospectus to 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 Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without the corresponding prospectus on file at Underwriter’s prior consent.
(f) The Company will retain in accordance with the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify 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 thereto, and will furnish to the Underwriter, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(j) The Company will cooperate with the Underwriter and counsel for the Underwriter in connection with the registration or supplement qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriter may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, 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 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 date hereof.
(k) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act.
(l) During the period ending three years from the date hereof, each such amendment or supplement to be satisfactory to Underwriters' Counselupon receipt of a written request from the Underwriter, and the Company will furnish to the Underwriters copies of such amendment or supplement Underwriter, (i) as soon as available available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, 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 Underwriters Underwriter may reasonably request.
(gm) During If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriter because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse 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 of three (3) years commencing on the date hereof and ending on the 60th day after the date hereofof the Prospectus (the “Lock-Up Period”), the Company will furnish not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than Common Stock issued pursuant to its stockholdersemployee benefit plans, as soon as practicablequalified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, each annual report (including financial statements audited by independent public accountantswarrants or rights), and each report or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options, rights or other instruments pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on Form 10-KSB (or 10-K, as the case may bedate hereof), including each amendment thereto(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 copy of any report on Form 10-QSB (or 10-Q, as the case may be)registration statement, including any amendment thereto and each current report on Form 8-Kamendments, including any amendment thereto, and will promptly deliver a copy of each such report with respect to the Representative and will deliver to the Representative:
(i) every press release and every material news item registration of any shares of Common Stock or article of interest to the financial community in respect of the Companysecurities convertible, exercisable or its affairs which was released exchangeable into Common Stock or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts 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.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(r) The Company will timely file with Nasdaq all documents and notices required by Nasdaq of companies that have or will issue securities that are traded on Nasdaq.
(s) The Company shall engage and maintain, at its subsidiary are consolidatedexpense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 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 of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representative[s] have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.Representatives shall
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may be necessary to enable the several Underwriters to continue the distribution of the Stock and will use its best efforts to cause the same to become effective as promptly as possible. The Company will promptly file all reports and any amendment definitive proxy or supplement information statements required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or for additional information. If sale of the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such orderStock.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative promptly Representatives thereof 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 the Prospectus or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be satisfactory necessary to Underwriters' Counselpermit compliance with the requirements of Section 10(a)(3) of the Securities Act. The Company authorizes the Underwriters and all dealers to whom any of the Stock may be sold by the several Underwriters to use the Prospectus, as from time to time amended or supplemented, in connection with the sale of the Stock in accordance with the applicable provisions of the Securities Act and the Rules and Regulations.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto and all documents theretofore 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 theretofore incorporated by reference therein but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request.
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earning statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the cooperation of the Representatives use its best efforts to obtain the withdrawal thereof.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five (5) years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters, as soon as they are available, copies of each annual report of the Company and each other report furnished by the Company to its shareholders and will deliver to the Representatives, (i) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its shareholders as such, (ii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange and (iii) from time to time such other information concerning the Company as the Representatives reasonably may request. 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 shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to list the Stock, subject to official notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the Registration Statement.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) For a period of five (5) years subsequent to the date hereof, prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not for a period of 90 days following the commencement of the public offering of the Stock by the Underwriters, directly or indirectly, (i) sell, offer, contract to sell, make any short sale, pledge, sell any option or contract to purchase, purchase any option or contract to sell, grant any option right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exchangeable or exercisable for or any rights to purchase or acquire Common Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences or ownership of Common Stock, whether any such transaction 14 described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, other than (I) the Company's sale of Common Stock hereunder (II) the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus, (III) the grant of options pursuant to the terms and conditions of the Company's 1995 Stock Option Plan and Directors Stock Option Plan, and to the extent such grants are described in the Prospectus and (IV) the sale and issuance of Common Stock pursuant to the terms and conditions of the Employee Stock Purchase Plan and the Director Stock Purchase Plan.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(m) The Company will supply 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 Stock under the Securities Act.
(n) Prior to each of the Closing Dates the Company will furnish to the Underwriters copies of such amendment or supplement Representatives, as soon as available they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in such quantities as the Underwriters may requestRegistration Statement and the Prospectus.
(go) During Prior to each of the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without the prior written consent of the Representatives. For a period of three twelve (312) months following the first Closing Date, the Company will use its best efforts to provide to the Representatives copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
(p) During the period of five (5) years after the date hereof, the Company will furnish to its stockholdersthe Representatives, and upon request of the Representatives, to each of the Underwriters: (i) as soon as practicablepracticable after the end of each fiscal year, each annual report (including financial 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 audited by 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, and copies of each report proxy statement, Annual Report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report Quarterly Report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report Report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such K or other report to filed by the Representative and will deliver to Company with the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the CompanyCommission, or its affairs which was released the NASD or prepared by any securities exchange; and (iii) as soon as available, copies of any report or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts communication of the Company and mailed generally to holders of its subsidiary are consolidatedCommon Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Maxwell Laboratories 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 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 Xxxxx & Company X.X. Xxxxxx Securities Inc. November __, 1996 Page Fourteen Registration Statement and any amendments thereto to become effective effective, (ii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use all commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use 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 the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any timethe 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 fifteenth 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, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred relating to or affecting the Company occurs as a Xxxxx & Company X.X. Xxxxxx 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 such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus. Xxxxx & Company X.X. Xxxxxx Securities Inc. November __, 1996 Page Sixteen
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earning statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such 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 Statement 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 Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the Act, each such amendment or supplement Representatives use all commercially reasonable efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Xxxxx & Company X.X. Xxxxxx 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 report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders and will deliver to the Representative:Representatives, (i) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its shareholders as such, (ii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange and (iii) from time to time such other publicly available information concerning the Company as you may request.
(h) The Company will use all commercially reasonable efforts to list the Stock, subject to official notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the Registration Statement.
(i) every The Company will maintain a transfer agent and registrar for its Common Stock.
(j) The Company will not offer, sell, contract to sell or grant an option to purchase any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Rules and Regulations) during the 180 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set, other than [(I) the Company's sale of Common Stock hereunder (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 463 of Rules and Regulations, the Company will furnish a copy thereof to the counsel for the Underwriters and receive and consider its Xxxxx & Company X.X. Xxxxxx Securities Inc. November __, 1996 Page Eighteen comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(l) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus.
(m) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(n) Prior to each of the Closing Dates, the Company will issue no press release or other communications directly or indirectly and every material news item or article of interest hold no press conference with respect to the Company, the financial community in respect condition, results of operations, business, prospects, assets or liabilities of the Company, or its affairs which was released or prepared by or on behalf the offering of the Stock, without your prior written consent.
(o) During the period of five (5) years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; and
(ii) any additional information as soon as practicable after the filing thereof, copies of a public nature concerning 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 (and iii) as soon as available, copies of any future subsidiary) report or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts communication of the Company and mailed generally to holders of its subsidiary are consolidatedCommon Stock.
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 of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective with effective, (ii) if the Commission as promptly as practicable Company and will not at any time, whether before or after the effective date Representatives have determined to proceed pursuant to Rule 430A of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
, 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 (biii) As soon as if the Company is advised or obtains knowledge 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 . The Company will advise the Representative and confirm Representatives promptly as to the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to time at which the Registration Statement becomes effective, (ii) will advise the Representatives 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, and will use its best efforts to prevent
(iiib) The Company will prepare and file with the Commission, promptly upon the request of the issuance by the Commission Representatives, any amendments 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 the Prospectus which in the opinion of the Representatives may be necessary to enable the several Underwriters to continue the distribution of the Stock and will use its best efforts to cause the same to become effective as promptly as possible. The Company will promptly file all reports and any amendment definitive proxy or supplement information statements required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or for additional information. If sale of the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such orderStock.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred its subsidiary 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 or make an appropriate filing pursuant to Section 13 or 14 of the Exchange Act 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.
(d) The Company will deliver to the Representatives, at or before the Closing Date, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto and all documents theretofore 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 theretofore incorporated by reference therein 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, each as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such amendment or supplement to be satisfactory to Underwriters' Counsel, and the prospectus.
(e) The Company will furnish make generally available to the Underwriters copies of such amendment or supplement its stockholders as soon as available practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in such quantities as Rule 158 under the Underwriters may requestSecurities Act) of the Registration Statement.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its stockholders and will deliver to the Representative:
Representatives, (i) every press release and every material news item as soon as they are available, copies of any other reports (financial or article other) which the Company shall publish or otherwise make available to any of interest to the financial community in respect of the Companyits stockholders as such, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional reports and financial statements furnished to or filed with the Commission or any national securities exchange and (iii) from time to time such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative as you may request. During such three (3)-year period, if So long as the Company has an active subsidiarysubsidiaries, the foregoing such financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the Rules and Regulations.
(h) The Company will use its best efforts to list the Stock, subject to official notice of issuance, on the Nasdaq National Market concurrently with the effectiveness of the Registration Statement.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) For a period of one year from the date hereof, prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers.
(k) The Company will not, without the prior written consent of Cowen, offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of, other than by operation of law, gifts, pledges or dispositions by estate representatives, any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the Company in accordance with the Rules and Regulations) during the 90 days following the date on which the price of the Common Stock to be purchased by the Underwriters is set, other than the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus or pursuant to the Company's stock plan described in the Prospectus or document incorporated by reference therein.
(l) Prior to filing with the Commission any reports on Form SR or successor report thereto pursuant to Rule 463 of Rules and Regulations which reflects a material change in the use of proceeds described in the Prospectus, the Company will furnish a copy thereof to the counsel for the Underwriters and receive and consider its comments thereon, and will deliver promptly to the Representatives a signed copy of each report on Form SR filed by it with the Commission.
(m) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(n) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(o) Prior to each of the Closing Dates the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its subsidiary are consolidatedfor any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(p) Prior to each of the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or its subsidiary, the financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the first Closing Date, the Company will use its best efforts to provide to you copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company as soon as practicable prior to the public issuance thereof.
(q) During the period of five (5) years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, 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) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock.
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 with the Commission 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 the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the 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 effectiveadvise you, (ii) 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 state securities commission authority issuance of any state 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 fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, 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 expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Underwriter's Preferred Shares is required to be delivered under the Act, 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;
(d) During the period beginning on the date hereof and continuing to and including the date 90 days after the date of the Prospectus, each 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 amendment or supplement 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 be satisfactory whom such securities are issued agree not to Underwriters' Counselpublicly resell such securities during such 90-day period, and (iv) pursuant to employee and/or director stock option plans existing on the Company will furnish date of this agreement, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date hereof or granted pursuant to the Underwriters copies of such amendment existing employee or supplement as soon as available and in such quantities as the Underwriters may request.
director stock option plans), or (gB) During a period of three (3) years after the date hereof, waive any provision in the Company will furnish Apollo Acquisition Agreement restricting the transfer of the securities to its stockholdersbe issued thereunder, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as in either case without the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy prior written consent of each such report to the Representative of Bear, Xxxxxxx and will deliver to the Representative:Xxxxxx acting together, which shalt not be unreasonably withheld;
(ie) every press release and every material news item or article of interest To use its best efforts to list for quotation the financial community in respect of Stock on the Company, or its affairs which was released or prepared by or on behalf of the CompanyNew York Stock Exchange ("NYSE"); and
(iif) any additional information of a public nature concerning If the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year periodelects to rely upon Rule 462(b), if the Company has an active subsidiaryshall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the foregoing financial statements will be on a consolidated basis date of this Agreement, and the Company shall at the time of filing either pay to the extent that Commission the accounts filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Company and its subsidiary are consolidatedAct.
Appears in 1 contract
Sources: International Underwriting Agreement (SFX Entertainment 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 with the Commission 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 the Exchange Act before termination of Company deem appropriate in connection with the offering of the Preferred 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 within two (2Commission for filing pursuant to Rule 424(b) business days after its receipt thereof or which is not in compliance with 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 with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) 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 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 transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.the
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 several Underwriters as followsthat:
(a) The Company shall will (i) use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 424 of the Rules and Regulations, (ii) 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 effective, (iii) if the Company and the Representatives have determined to proceed pursuant to Rule 430A, use its best efforts to comply with the provisions of and make all requisite filings with the Commission as pursuant to Rule 430A of the Rules and Regulations and (iv) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the First Closing, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements, but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Pre- effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented, as the Representatives may reasonably request; provided, however, that the expense of the -------- ------- preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its stockholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may designate and, at the request of the Representatives, will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company -------- ------- shall not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly after the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, sale or trading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any orders suspending such qualifications, registration or exception, the Company will, with the Commission an appropriate amendment or supplement in accordance with Section 10 cooperation of the ActRepresentatives, each such amendment or supplement use its best efforts to be satisfactory to Underwriters' Counsel, and obtain the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestwithdrawal thereof.
(g) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During a the period of three five (35) years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, upon request, to each of the other Underwriters, as soon as practicablethey are available, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its stockholders and will deliver to the Representative:
Representatives, (i) every press release and every material news item as soon as they are available, copies of any other reports (financial or article other) which the Company shall publish or otherwise make available to any of interest to the financial community in respect of the Companyits stockholders as such, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional reports and financial statements furnished to or filed with the Commission or any national securities exchange and (iii) from time to time such other information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative as you may request. During So long as the Company's subsidiaries are active, such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries are consolidatedconsolidated in reports furnished to its stockholders generally.
(h) The Company will use its best efforts to cause the Stock to be accepted for quotation on the Nasdaq National Market concurrently with the effectiveness of the Registration Statement.
(i) The Company will maintain a transfer agent and registrar for its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly results.
(k) The Company will not offer, sell, assign, transfer, encumber, contract to sell, grant an option, right or warrant to purchase or otherwise dispose (or announce any offer, assignment, sale, transfer, encumbrance, contract to sell, grant of an option, right or warrant to purchase or other disposition) of any shares of, Common Stock or securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock of the Company which may be deemed to be beneficially owned by the undersigned in accordance with the Rules and Regulations) for 180 days commencing on the date of the final prospectus, other than (i) the Company's sale of Common Stock hereunder and the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding or described in the Prospectus, (ii) the Company's grant of stock options pursuant to the 1996 Incentive and Nonqualified Stock Option Plan in accordance with the terms and provisions of that plan described in the Prospectus and (iii) the Company's issuance of common stock pursuant to the 1996 Employee Stock Purchase Plan in accordance with the terms and provisions of that plan described in the Prospectus.
(l) The Company will furnish to the Representatives a signed copy of each report on Form SR as filed pursuant to Rule 463 of the Rules and Regulations.
(m) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-B.
(n) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(o) Prior to the Closing Dates, the Company will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and any of its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(p) Prior to the Closing Dates, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without your prior written consent. For a period of twelve (12) months following the Closing Date, the Company will use its best efforts to provide to you copies of each press release or other public communication with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or during such longer advance period as may reasonably be practicable.
(q) During the period of five (5) years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, 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 The Nasdaq Stock Market, Inc. or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with each of the several Underwriters as followsthat:
(a) The Company shall will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to cause prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of any request by the Commission for any amendment of or supplement to the Registration Statement and any amendments thereto to become effective with or the Commission as promptly as practicable Prospectus or for additional information, and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing or use thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange 1933 Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the . The Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, Representatives promptly when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,.
(eb) The Company shall endeavor in good faith, in cooperation will prepare and file with the RepresentativeCommission, at promptly upon the request of the Representatives, any amendments or prior supplements to the time the Registration Statement becomes effective, to qualify or the Securities for offering and sale under Prospectus which in the securities laws opinion of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as Representatives may be necessary to complete enable the distributionseveral Underwriters to continue the distribution of the Securities and, in the case of any such amendments to the Registration Statement, will use its best efforts to cause the same to become effective as promptly as possible. The Company will promptly file all reports and shall make such applications, file such documents and furnish such any definitive proxy or information as may be required for such purpose; provided, however, the Company shall not be statements required to qualify be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so long as a foreign corporation or file a general or limited consent to service the delivery of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance connection with the provisions hereof and offering or sale of the Prospectus, or any amendments or supplements thereto. Securities.
(c) If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, 1933 Act any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act1933 Act or the Rules and Regulations, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented Prospectus (in form and substance reasonably satisfactory to counsel to the Underwriters) or, with the consent of counsel to the Underwriters, make an appropriate filing pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission; and, in case any Underwriter is required to deliver a prospectus relating to the Securities nine months or more after the date of this Agreement, the Company upon the request of the Representatives and at the expense of such Underwriters will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will deliver to the Representatives, at or before the Closing Date, signed copies of the Registration Statement and all amendments thereto (including all financial statements and exhibits thereto and all documents incorporated or deemed to be incorporated by reference therein) and will deliver to the Representatives such number of copies of the Registration Statement, including such financial statements and all documents incorporated or deemed to be incorporated by reference therein but without exhibits, and of all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and 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 pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 0000 Xxx) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act, covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Securities to be qualified for sale under the securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate and at the request of the Representatives will make such applications and furnish such information as may 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 with such statements and reports as are or may be required of it as the Commission an appropriate amendment or supplement in accordance with Section 10 issuer of the Act, each Securities to continue such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and qualifications in such quantities effect for so long a period as the Underwriters Representatives may requestreasonably request for the distribution of the Securities.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information, in reasonable detail which may be unaudited. During a the period of three (3) five years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, as soon as practicableupon request, to each of the other Underwriters, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:Representatives, as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such and, as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange.
(h) The Company will use the net proceeds received by it from the sale of the Securities sold by it in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(i) every press release and every material news item or article Immediately following the execution of interest to this Agreement, the financial community in respect Company will prepare a prospectus supplement, dated the date hereof (the "Prospectus Supplement"), containing the public offering price of the CompanySecurities, or its affairs which was released or prepared by or on behalf the underwriting discounts and commissions, the plan of distribution of the Company; Securities and such other information as may be required by the 1933 Act or the Rules and Regulations or as the Representatives and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) of the Rules and Regulations copies of such Prospectus Supplement and, if required by Rule 424(b), the Base Prospectus.
(iij) any additional information of a public nature concerning During the period beginning on the date hereof and continuing through and including the Closing Date, the Company (and will not offer, sell, contract to sell or otherwise dispose of any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts debt securities of the Company or any of its subsidiaries which are substantially similar to the Securities (other than the Securities) or any securities convertible into or exchangeable or exercisable for any debt securities of the Company or any of its subsidiaries which are substantially similar to the Securities or any rights, warrants or options to purchase any debt securities of the Company or any of its subsidiaries which are substantially similar to the Securities, without your prior written consent.
(k) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code.
(l) In accordance with the provisions of the Cuba Act, if applicable, and its subsidiary are consolidatedwithout limitation to the provisions of Section 6 hereof, the Company will indemnify each Underwriter against any and all losses, claims, damages, liabilities and expenses (including attorneys' fees) arising out of or based upon any violation by the Company of the Cuba Act.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will (i) if the Company and the Representatives have determined not to proceed pursuant to Rule 430A of the of the Rules and Regulations, use its best efforts to cause the Registration Statement and any amendments thereto to become effective 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 as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as practicable to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company Stock and will make every effort use its best efforts to obtain cause the same to become effective as promptly the lifting of such orderas possible.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the Stock is required to be delivered under the Act, Securities Act any event relating to or affecting the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company Prospectus or Underwriters' Counsel, the Prospectus, any other prospectus as then amended or supplemented, includes in effect would include an untrue statement of a material fact fact, or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.fact
Appears in 1 contract
Sources: Underwriting Agreement (Aironet Wireless 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 with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is used, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you and your counsel shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you or your counsel have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such quantities as Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of 5 years after the Underwriters may requestdate hereof.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) During the period of three (3) ending five years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to its shareholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq National Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, in which case the provisions of this paragraph shall not apply) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A under the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act.
(m) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and each report on Form 10-KSB except for the issuance, sale or grant of options or shares of Common Stock pursuant to the Company's stock option, stock purchase or dividend reinvestment plans in effect as of the date hereof ("Permitted Plans") and described in the Prospectus and except for issuances of shares of Common Stock upon the exercise of options under such plans.
(n) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as practicable, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary Subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430B under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any amendment to stop order suspending the effectiveness of the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any timeStatement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement, the Time of Sale Information or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement, the Time of Sale Information or the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from that would constitute an Issuer Free Writing Prospectus without your prior consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Securities, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Securities pursuant to the offering contemplated by the Prospectus or (ii) the expiration of prospectus delivery requirements with respect to the Securities under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. In addition, during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) The Company will use its reasonable best efforts to cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Securities, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Securities in any jurisdiction is suspended, the Company shall so advise you promptly in writing. If required, the Company will use its reasonable best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as is required for the distribution of the Securities.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (including financial “FINRA”) or the Nasdaq Global Market (“Nasdaq”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request, provided that the Company’s obligation pursuant to this Section 5(k) shall be satisfied to the extent the Company files or furnishes any such documents or report to XXXXX.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to pay or reimburse you and the other Underwriters for all reasonable out-of-pocket costs and expenses (including, without limitation, the fees and expenses of the Underwriters’ outside attorneys) incurred by the Underwriters in connection herewith, not to exceed $100,000.
(m) The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), including, without limitation, any sales pursuant to the Distribution Agreement, dated as of September 7, 2018, by and between the Company and Xxxxxxx Xxxxx & Associates, Inc., or any similar arrangement, or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters, and to cause each officer, director and stockholder of the Company set forth on Schedule III hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit B hereto (the “Lock-KUp Agreements”).
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretoat the reasonable request of the Underwriters, a copy the Company will furnish to you, as promptly as possible following your request, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(q) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Securities.
(r) The Company will timely file with Nasdaq all documents and notices required by the Nasdaq of companies that have or will issue securities that are consolidatedtraded on the Nasdaq.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5.1(h) hereof, of any request by change in the Commission for Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to by in the reasonable judgment of the Company or the Representative, pursuant to Rule 424(b)(4)) not later than be required by the Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes Issuer Free Writing Prospectus to you and counsel for use by the Underwriters in connection and obtain your consent prior to filing any of those with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as which consent shall not be unreasonably withheld, delayed or conditioned.
(e) The Company will not make any offer relating to the case may Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be at unreasonably withheld, delayed or conditioned.
(f) The Company will retain in accordance with the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may reasonably request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the reasonable judgment of the Company or in the opinion of counsel for the Underwriters is required to be stated set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(gk) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the NASDAQ Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request. For purposes of this paragraph, any document filed electronically with the Commission and publicly available shall be deemed to be furnished to the Underwriters.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, other than clauses (iv) or (v)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption “Use of Proceeds” in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), and each report on Form 10-KSB not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each officer, director and shareholder of the Company set forth on Schedule IV hereto to furnish to the Representative, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-KUp Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representative, on behalf of the Underwriters, waive such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock will be listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (First Guaranty Bancshares, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each 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 with the Commission 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 the Exchange Act before termination of Company deem appropriate in connection with the offering of the Preferred 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 within two (2Commission for filing pursuant to Rule 424(b) business days after its receipt thereof or which is not in compliance with 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 with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) 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) 1000 Xxx. 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 the state securities commission authority of any state 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 fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations)otherwise, and will furnish the Representative you with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing filing, and will not file any such amendment or usesupplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, as the case may be,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 1000 Xxx) 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 or the Underwriter's Preferred Shares 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) During 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 no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of three at least twelve months beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (3as defined in said Rule 158) of the Registration Statement.
(j) 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 the period of five years after from the date hereof, the Company will furnish deliver to its stockholdersyou and, as soon as practicableupon request, to each of the other Underwriters, (i) copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Companyyou, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) as soon as they are available, copies of any additional information of a public nature concerning other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any future subsidiary) or its businesses which national securities exchange. In the Representative may request. During such three (3)-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 subsidiaries are consolidatedconsolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations.
(k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(l) The Company will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code for the taxable year in which sales of the Underwritten Securities are to occur, unless otherwise specified in the Prospectus.
(m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(n) If the Preferred Shares or Depositary Shares are convertible into Common Shares or if Warrants are issued, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares or Preferred Shares, as the case may be, for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Preferred Shares or the Depositary Shares, as the case may be, or upon exercise of the Warrants.
(o) If the Preferred Shares or Depositary Shares are convertible into Common Shares or if Warrants are exercised, the Company will use its best efforts to list the Common Shares issuable upon conversion of the Preferred Shares or Depositary Shares or upon exercise of the Warrants on the NYSE or such other national exchange on which the Company’s Common Shares are then listed.
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 several Underwriters as follows:
(a) The Company shall use its best efforts to cause will advise you promptly and, if requested by you, will confirm such advice in writing (i) the Registration Statement time and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed, (iii) of the receipt of any comments of the Commission relating to Registration Statement, or any request by the Commission for amendments or supplements to the Registration Statement or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Notes for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) of any request by within the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification period beginning at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as thereafter from time to time in force, so far for such period as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Securities Act to be delivered in connection with sales by any Underwriter or a dealer, of any change in the condition (financial or otherwise), business, prospects, properties, assets, net worth or results of operations of the Company or Underwriters' Counselany subsidiaries thereof, taken as a whole, or of any event that comes to the Prospectus, attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented, includes an ) untrue statement of a material fact or omits to state in any material fact required to be stated respect or that requires the making of any additions thereto or changes therein or necessary in order to make the statements thereintherein (in the case of the Prospectus, in the light of the circumstances under which they were made, ) not misleadingmisleading in any material respect, or if it is necessary at any time of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the ActSecurities Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will notify make every reasonable effort to obtain the Representative promptly and prepare withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 the provisions of Rule 430B and in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and any such Issuer Free Writing Prospectus in the manner and within the time period required by Rule 433. As used in this Agreement, “subsidiaries” shall mean all of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, wholly-owned and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available partially-owned direct and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect indirect subsidiaries of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the 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 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 as pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (iii) if the Company and the Representatives have determined to deliver 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 the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Securities Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If which in the Commission or opinion of the state securities commission authority Representatives may be reasonably necessary to enable the several Underwriters to continue the distribution of any state shall enter a stop order or suspend such qualification at any time, the Company 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 fifteenth business day If at any time after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus relating to the 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 or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred of its subsidiaries occurs as a result of which, in which the opinion of counsel for the Company 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 and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Common Stock shall have been sold by the Representatives on behalf of the Underwriters 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.
(d) The Company will deliver to the Representatives, at or before the Closing Dates, signed copies of the Registration Statement, as originally filed with the Commission, and 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-effective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Common Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any prospectus required for use nine (9) months or more after the effective date of the Registration Statement shall be borne by the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its shareholders as soon as practicable, but not later than fifteen (15) months after the effective date of the Registration Statement, an appropriate amendment earning statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Common Stock to be registered or supplement 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) The Company will maintain a 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 not, for a period of 180 days following the date of the final prospectus filed by the Company with the Securities and Exchange Commission in connection with such public offering without the prior written consent of SG Cxxxx, xx behalf of the several Underwriters, (1) directly or indirectly, offer, sell, assign, transfer, encumber, pledge, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise dispose of, other than by operation of law, or file with the Securities and Exchange Commission a registration statement under the Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, Common Stock which may be deemed to be beneficially owned by the Company in accordance with Section 10 the Rules and Regulations) or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the Act, each economic consequences of ownership of Common Stock whether any such amendment transaction described in clause (1) or supplement (2) above is to be satisfactory 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 are granted after the date hereof and which are exercisable before the expiration of the 180-day period referred to Underwriters' Counselabove consistent with the Company's past practices in the two years preceding the date of this Agreement, (d) the Company's issuance of Common Stock pursuant to 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 other employee benefit arrangements of the Company in existence on the date hereof, provided, however, that such no registration statement will be filed for a period 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.
(k) The Company will apply the net proceeds from the sale of the Common Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all respects with the requirements of Item 504 of Regulation S-K.
(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 Common Stock under the Securities Act.
(m) Prior to each of the Closing Dates the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholdersRepresentatives, as soon as practicablethey have been prepared, each annual report (including copies of any unaudited interim consolidated financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(n) Prior to each of the Closing Dates the Company will issue no press release or other communications directly or indirectly and hold no press conference (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Underwriters are consolidatednotified) with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, prospects, assets or liabilities of any of them, or the offering of the Common Stock, without the Representatives' prior written consent, unless in the judgment of the Company and its counsel, and after notification to the Underwriters, such press release or communication is required by law. For a period of twelve (12) months following the First Closing Date, the Company will use its best efforts to provide to the Representatives copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company at least twenty-four (24) hours prior to the public issuance thereof or such longer advance period as may reasonably be practicable.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and RegulationsRegulations unless the Act, the Exchange Act or the Rules and Regulations require that such a filing be made by a date that is prior to such objection having been waived or withdrawn by the Representative.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding proceeding, suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; , and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the RepresentativeUnderwriters) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the RepresentativeUnderwriters, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative Underwriters with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Underwriters or Loeb & Loeb LLP ("Underwriters' Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the RepresentativeUnderwriters, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative Underwriters may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees Underwriters agree that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is are required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative Underwriters promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to the reasonable satisfaction of Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may reasonably request.
(g) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Underwriters, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(h) During a period of three (3) two years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative ) and will deliver to the RepresentativeUnderwriters:
(i) concurrently with furnishing such annual reports to its stockholders, a copy of such annual report;
(ii) concurrently with the furnishing of any such reports to its stockholders, copies of all reports (financial or other) mailed to stockholders;
(iii) concurrently with the furnishing of any such reports and financial statements to the relevant entity, copies of all publicly available reports and financial statements filed with the NASD or any securities exchange;
(iv) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf at the direction of the Company; and;
(iiv) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative Underwriters may reasonably request. ; and
(vi) During such three (3)-year two-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Underwriters or on Underwriters' order, without charge, at such place as the Underwriters may designate, copies of the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may request.
(k) During the twelve (12) month period commencing on the effective date of the Registration Statement, and except as contemplated by this Agreement, the Company shall not, without the prior written consent of the Representative, (i) sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate, distribute, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any options, rights or warrants with respect to any shares of Common Stock, except up to an aggregate of 1,633,700 shares of Common Stock (the "Reserved Shares"), including 200,500 shares of Common Stock underlying options to be granted upon the effectiveness of the Registration Statement (the "IPO Options"), reserved for the grant of options or for issuance upon the exercise of options that are currently outstanding, provided, however, that such options granted after the date hereof shall have an exercise price which is at least equal to the closing price of the Common Stock on the AMEX on the date of grant, except for the IPO Options, which shall have an exercise price equal to the initial public offering price per share; or (ii) file any registration statement for the offer or sale by the Company or any other person or entity securities issued or to be issued by the Company or any present or future subsidiaries other than a Form S-8 to register the Reserved Shares and IPO Options. For a period of twelve (12) months from the effective date of the Registration Statement, the Company will not, without the prior consent of Representative, issue any Stock Appreciation Rights, Stock Bonuses or other compensation under its Stock Option/Stock Issuance Plan other than stock options as provided for above. On or before the Closing Date, the Company shall deliver instructions to the Transfer Agent authorizing it to place appropriate legends on the certificates representing the securities subject to the Lock-up Agreements and to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the 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 substantially the same manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. Except as described in the Prospectus, no portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Underwriters as early as practicable prior to each of the date hereof, the Closing Date and each Option Closing Date, if any, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Company (which in no event shall be as of a date more than thirty (30) days prior to the date of the Registration Statement) which have been read by the Company's independent public accountants, as stated in its letter to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Common Stock to be listed on AMEX and, for a period of two (2) years from the date hereof, use its best efforts to maintain the AMEX listing of the Common Stock on the AMEX or other exchange or market acceptable to the Representative, provided, however, that the Nasdaq National Stock Market and New York Stock Exchange shall be deemed acceptable to the Representative.
(q) As soon as practicable, but in no event more than 20 business days before the effective date of the Registration Statement, file a Form 8-A with the Commission providing for the registration under the Exchange Act of the Securities.
(r) Except for issuances pursuant to the Company's 1998 and 2003 Stock Option Plans (the "Plans"), the Company hereby agrees that it will not, without written approval of the Representative, 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 arrangement permitting the grant, issue or sale of any shares of Common Stock or other securities of the Company, (i) in an amount greater than an aggregate of 50,000 shares of Common Stock (when aggregated with other options outstanding at the date of this Agreement, (ii) at an exercise or sale price per share less than the closing price of the Common Stock on the AMEX on the date of grant or sale, (iii) to any direct or indirect beneficial holder on the date hereof of more than 5% of the issued and outstanding shares of Common Stock, (iv) with the payment for such securities with any form of consideration other than cash, shares of Common Stock or the forfeiture of outstanding options, or (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. (s) Until 30 days after the date hereof, the Company shall not without the prior written consent of the Representative, 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 activities or the offering contemplated hereby.
(t) 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 Underwriters' Shares, the Company will not take any action or actions which may prevent or disqualify the Company's use of Form S-1 (or other appropriate form) for the registration under the Act of the Representative's Shares.
(u) For a period of twenty-four (24) months after the effective date of the Registration Statement, the Company shall not restate, amend or alter any term of any written employment, consulting or similar agreement entered into between the Company and any officer, director or key employee as of the 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.
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 will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. If the Company elects, with the consent of the Representative, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) Prior to the Commission or the state securities commission authority execution and delivery of any state shall enter a stop order or suspend such qualification at any timethis Agreement, the Company has delivered or will make every effort deliver to obtain promptly you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the lifting Preliminary Prospectus. Consistent with the provisions of such orderSection 5(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(ce) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after “Prospectus Delivery Period”), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters copies in connection with the registration or qualification of the Shares for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such quantities as Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the Underwriters may requestdate hereof.
(g) The Company will make generally available to its security holders an earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During a the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Securities Exchange Act of 1934, as amended in the manner and within the time periods required by the Exchange Act.
(i) During the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to the other Underwriter, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the “NASD”) or the Nasdaq National Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) 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 Underwriter for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited under the caption “Use of Proceeds” in the Prospectus.
(l) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(m) 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 not, (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, “Company Securities”) or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and each report on Form 10-KSB except for 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 and except for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans.
(n) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim financial statements will be on a consolidated basis to the extent that the accounts of the Company for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company will timely file with NASDAQ all documents and notices required by the NASDAQ of companies that have or will issue securities that are traded on the NASDAQ.
(r) The Company shall engage and maintain, at its subsidiary are consolidatedexpense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(s) The Company will maintain as its independent auditors a Big 6 accounting firm for the period ending three (3) years from the date hereof.
Appears in 1 contract
Covenants and Agreements of the Company. 5.1. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause (i) keep the Registration Statement and any amendments thereto to become effective with and (ii) prevent the Commission as issuance of any order described in Section 5.1(b)(v) hereof;
(b) The Company will advise you promptly as practicable and, if requested by you, will confirm such advice in writing:
(i) of the time and will not at any time, whether before or after the effective date of any filing of any amendment or supplement to the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file and any document Issuer Free Writing Prospectus;
(ii) if Rule 430A under the Act or the Exchange Act before termination is employed, of the offering time and date of filing of the Preferred Shares Prospectus pursuant to Rule 424(b) under the Act;
(iii) of the time and date of filing of any Rule 462(b) Registration Statement;
(iv) of (x) the receipt of any comments of the Commission, (y) any request by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, Commission for amendments or supplements to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with any Preliminary Prospectus or the Prospectus or (z) any request by the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, for additional information;
(iiv) of (y) the issuance by the Commission or any other government or regulatory authority of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement Statement, suspending the qualification of the Shares for offering or sale in any order jurisdiction, or preventing or suspending the use of the Preliminary Registration Statement, the Time of Sale Information, the Prospectus or any Issuer Free Writing Prospectus or (z) the Prospectusinitiation or, or any amendment or supplement thereto, or to the institution of proceedings for that purpose, (iii) knowledge of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiationCompany, or the threatening, of any proceeding for that purpose, the purpose of any order referred to under item (ivy) or initiated pursuant to Section 8A of the receipt Act; and
(vi) within the Prospectus Delivery Period (as defined below), of any comments from change in the Commission; and Company’s condition (v) financial or other), business, prospects, properties, net worth or results of operations, or of any request by the Commission for any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any amendment or supplement to the Prospectus or for additional information. other law;
(c) If at any time the Commission or the state securities commission any other government or regulatory authority of shall issue any state shall enter a stop order or suspend such qualification at any timeas referred to under Section 5.1(b)(v), the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such order.
(c) The Company shall file order at the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.earliest possible time;
(d) The Company will give provide the Representative notice Underwriters with copies of its intention the form of the Prospectus, in such number as the Underwriters may reasonably request, and file the Prospectus with the Commission in accordance with, and within the time period specified by, Rule 424(b) and Rule 430(A) under the Act before the close of business on the first business day immediately following the date hereof;
(e) The Company will furnish to file or prepare any amendment to you, without charge, (i) two (2) signed duplicate originals of the Registration Statement and any amendment thereto, including financial statements and all exhibits thereto, and (including ii) such number of conformed copies of the Registration Statement and any post-effective amendmentamendment thereto, as you may reasonably request;
(f) or The Company will promptly prepare and file with the Commission any amendment or supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that may be (including any revised prospectus which i) in the judgment of the Company proposes for use or the Representative, be required (y) to comply with the Act or any other law or (z) in relation to Section 1.1(a) hereof or (ii) requested by the Underwriters in connection with Commission;
(g) Before (i) using, authorizing, approving, referring to, distributing or filing any Issuer Free Writing Prospectus, (ii) filing (x) the offering of the Securities which differs from the corresponding prospectus on file at the CommissionProspectus, as the case may be at the time (y) any Rule 462(b) Registration Statement or (z) any amendment or supplement to the Registration Statement becomes effectiveor the Prospectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b(iii) of the Rules and Regulations), and will furnish the Representative with copies of distributing any such amendment or supplement no later than two (2) business days after its receipt thereof prior to the Time of Sale Information or the Prospectus, the Company will furnish to the Representative and counsel to the Underwriters a copy of the such proposed filing or document for review and will not use, as authorize, refer to, distribute or file any such document to the case may be,extent that (A) the Representative reasonably objects thereto in a timely manner and (B) it is not in compliance with the Act or any other law;
(eh) The Company shall endeavor will not make any offer relating to the Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent;
(i) The Company will, pursuant to reasonable procedures developed in good faith, in cooperation retain any Issuer Free Writing Prospectus that is not filed with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process Commission in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered accordance with Rule 433 under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, the Company will (x) notify the Representative, (y) prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance and (z) upon your request, file such amended or supplemented Issuer Free Writing Prospectus with the Commission if such Issuer Free Writing Prospectus was required to be stated filed under Rule 433 of the Act;
(j) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with the offering and sale of the Shares by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Shares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request;
(k) The Company consents to the use of each Preliminary Prospectus, the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered and/or sold by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering and sale of the Shares and for the Prospectus Delivery Period. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly and forthwith prepare and and, subject to Section 5.1(b) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof;
(l) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its reasonable best efforts to qualify or register its Common Stock for offering and/or sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for as long as may be necessary to complete the distribution of the Shares;
(m) The Company will make generally available to its securityholders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve (12)-month period commencing after the effective date of the Registration Statement or any Rule 462(b) Registration Statement, as the case may be, and ending not later than fifteen (15) months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.;
(gn) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the Underwriters, (i) as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment theretoavailable, a copy of each proxy statement, quarterly or annual report, financial statement and any other report on Form 10-QSB or communication (financial or 10-Qother) delivered to shareholders or filed with the Commission, FINRA or Nasdaq or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request; provided, the case may be), including any amendment thereto Company will be deemed to have furnished such reports and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report financial statements to the Representative Representatives to the extent they are filed on XXXXX;
(o) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Information and the Prospectus;
(p) The Company will deliver cause each officer, director and shareholder of the Company set forth on Schedule III hereto to furnish to the Representative, prior to the Closing Date, duly executed lock-up letter(s) which shall be substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”);
(q) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly:
(i) every press release offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into, or exercisable or exchangeable for, any shares of Common Stock (other than (A) the registration, offer and every material news item sale of the Shares contemplated hereunder, (B) any Common Stock, bonus or article other options or rights granted or exercised pursuant to any Stock Plans (the “Stock Options”), provided, that the grantees or recipients thereof agree, pursuant to a Lock-Up Agreement, not to sell, offer, dispose of interest or otherwise transfer any such equity interests or Common Stock during the Lock-Up Period without the prior written consent of the Representative or (C) Common Stock issued pursuant to currently outstanding options, warrants or rights), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into, or exercisable or exchangeable for Common Stock (other than Stock Options or Common Stock issued pursuant to currently outstanding options, warrants or rights), whether any such transaction is to be settled by delivery of any shares of Common Stock or other securities, in cash or otherwise;
(ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any shares of Common Stock, whether any such transaction is to be settled by delivery of any shares of Common Stock or other securities, in cash or otherwise;
(iii) file, confidentially submit or cause to be confidentially submitted or filed a registration statement, including any amendments thereto, with respect to the financial community registration of any shares of Common Stock or securities convertible into, exercisable or exchangeable for, any shares of Common Stock or any other securities of the Company (other than a registration statement on Form S-8 with respect to any Stock Plans); or
(iv) publicly disclose the intention to take any of the actions described under Sections 5.1(q)(i), 5.1(q)(ii) or 5.1(q)(iii), in respect each case without the prior written consent of the Representative;
(r) The Company will comply with all provisions of any undertakings contained in the Registration Statement;
(s) Other than excepted activity pursuant to Regulation M under the Exchange Act, the Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause, result in, or constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares;
(t) The Company will timely file with Nasdaq all documents and notices required by Nasdaq of companies that have or will issue securities that are traded on Nasdaq;
(u) The Company will engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock;
(v) None of the Company, the Manager or its affairs which was released any of their Subsidiaries shall invest or prepared by or on behalf otherwise use the proceeds received from the sale of the CompanyShares in such manner as it would qualify as an “investment company” or an “affiliated person” of, or “promoter”, “principal investor” or “principal underwriter” for, an “investment company” within the meaning of the U.S. Investment Company Act; and
(iiw) any additional information of The Company will use its reasonable best efforts to meet the requirements for qualification and taxation as a public nature concerning REIT under the Code for its taxable year ending December 31, 2024, and the Company (and any future subsidiary) or intends to use its businesses which reasonable best efforts to continue to qualify for taxation as a REIT under the Representative may request. During such three (3)-year periodCode in subsequent taxable years, if unless the Company has an active subsidiary, Company’s Board of Directors determines in good faith that it is no longer in the foregoing financial statements will be on a consolidated basis to the extent that the accounts best interests of the Company and its subsidiary are consolidatedshareholders to so qualify or to be so qualified.
Appears in 1 contract
Sources: Underwriting Agreement (Sunrise Realty Trust, Inc.)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall will use its reasonable best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement thereto becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by material change in the Commission for Company's financial condition, business 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 not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such order.
(c) The Company shall file order at the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(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 earliest possible time. If the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus elects to rely on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered 434 under the Act, the Company shall use all reasonable efforts to comply will provide the Underwriters with all copies of the form of the Rule 434 Prospectus (including copies of a term sheet that complies with the requirements imposed upon it by of Rule 434 under the Act Act), in such number as the Underwriters may reasonably request, and file with 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 Commission in accordance with Rule 424(b) of the provisions hereof and Act the Prospectus, or any amendments or supplements theretoform 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 at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits elects not to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances rely on Rule 434 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 provide the Representative promptly and prepare Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission an appropriate amendment or supplement such Prospectus in accordance with Section 10 Rule 424(b) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and 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 Underwriters copies Registration Statement as originally filed with the Commission and of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto financial statements and each current report on Form 8-K, including any amendment all exhibits thereto, and will promptly deliver a copy of each also furnish to you, without charge, such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.number of
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable and will not at any time, whether before or after the effective date of the Registration Statement, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes effective with the Commission andeffective, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, ; (ii) of the issuance by the Commission of any stop order or of the initiation initiation, or the threatening threatening, of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, ; (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, ; (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the any state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth fifth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof a reasonable amount of time prior to such proposed filing or use, as the case may be,, and will not file any such prospectus to which the Representative or Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP ("Underwriters' Counsel") shall object.
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than forty-five (45) days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(h) During a period of three five (35) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report reports (including financial statements audited by independent public accountants)) and unaudited quarterly reports of earnings, and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the certificate thereon of independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs affairs, which was released or prepared by or on behalf of the Company; and
(iivi) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year seven-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiary(ies) are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent") and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Representative or on the Representative's order, without charge, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits), the Prospectus, and all amendments and supplements thereto, including any prospectus prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statement, the Company shall provide the Representative with true original copies of duly executed, legally binding and enforceable agreements pursuant to which, for a period of twenty-four (24) months from the effective date of the Registration Statement, each of the Company's stockholders and holders of securities exchangeable or exercisable for or convertible into shares of Common Stock agrees that it or he or she 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) The Company, nor any of its officers, directors, stockholders, nor any of their respective affiliates (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the Securities in the manner, and subject to the conditions, set forth under "Use of Proceeds" in the Prospectus. No portion of the net proceeds will be used, directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Exchange Act, and the Rules and Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to 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 Nasdaq and, for a period of five (5) years from the date hereof, use its best efforts to maintain the Nasdaq 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 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 Xxxxx'x 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 S-1 (or other appropriate form) for the registration under the Act of the Representative's Securities.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement thereto becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission for amendments or supplements to the Registration Statement, any Prepricing Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in 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 other event that comes to the attention of the Company, that results in the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes ) containing an untrue statement of a material fact or omits omitting to state any a material fact required to be stated therein or necessary to make the statements thereintherein not misleading in any material respect, in the light or of the circumstances under which they were made, not misleading, necessity to amend or if it is necessary 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 amend obtain the Prospectus withdrawal or lifting of such order at the earliest possible time. If the Company elects to comply with rely on Rule 434 under the Act, the Company will notify provide the Representative promptly and prepare 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 an appropriate amendment or supplement in accordance with Section 10 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, each the Company will provide the Underwriters with copies of the form of Prospectus, in such amendment or supplement to be satisfactory to Underwriters' Counselnumber 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 Underwriters copies Registration Statement as originally filed with the Commission and of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereof, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto financial statements and each current report on Form 8-K, including any amendment all exhibits thereto, and will promptly deliver a copy also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative amendment thereto as you may reasonably request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary are consolidated.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters 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 with the Commission as promptly as practicable and will not at any time, whether before or period ending 90 days after the effective date of the Registration Statement, file any amendment hereof to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and Initial Purchaser promptly and, if requested, confirm the notice such advice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission happening of any stop event which makes any statement of a material fact made in the Offering Circular untrue or that requires the making of any additions to or changes in the Offering Circular (as amended or supplemented from time to time) in order or to make the statements therein, in light of the initiation or circumstances under which they were made, not misleading; to advise the threatening Initial Purchaser promptly 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 Debentures 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 Circular or of the Offering Circular 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 the state securities commission authority of any state 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 Purchaser and counsel for the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (orInitial Purchaser, 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 fifteenth 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, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act Preliminary Offering Circular and the Exchange Act, as now Offering Circular (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 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 the Company hereby consents to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto, in connection with Exempt Resales of the Debentures;
(c) if the delivery of the Offering Circular is required at any time when a prospectus relating to in connection with the Securities or sale of the Underwriter's Preferred Shares is required to be delivered under the Act, Debentures 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 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 shall be necessary at such time to amend or supplement the Offering Circular in order to comply with any law, to notify the Initial Purchaser immediately thereof, and to promptly prepare and furnish to the Initial Purchaser an amended Offering Circular or a supplement to the Offering Circular so that statements in the Offering Circular, 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 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 5 hereof;
(d) during the five-year period following the Closing Date, provided any of the Debentures remain outstanding, to furnish to the Initial Purchaser all public reports and all reports, documents, information and financial statements furnished by the Company to the Commission pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(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 Debentures, to furnish to such holder, and to any prospective purchaser or purchasers of the Debentures 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 Debentures, and prospective purchasers of the Debentures designated by such holders;
(f) to use the proceeds from the sale of the Debentures in the manner described in the Offering Circular under the caption "Use of Proceeds";
(g) in connection with the offering of the Debentures, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchaser;
(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 Debentures;
(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 Debentures 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 Debentures in a manner that would require the registration of the Debentures under the Securities Act;
(k) to not, so long as the Debentures 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 will 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 Purchaser and counsel for the Initial Purchaser to qualify the Debentures 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 Debentures; 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 use its reasonable best efforts to comply with the Act, Registration Rights Agreement and all agreements set forth in the representation letters of the Company will notify to The Depository Trust Company relating to the Representative promptly and prepare and file approval of the Debentures for "book- entry" transfers;
(n) in connection with the Commission an appropriate amendment or supplement in accordance with Section 10 offering, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Debentures, to not and use its reasonable best efforts to not permit any affiliated purchasers (as defined in Rule 10b-6 under the Exchange Act), each such amendment either alone or supplement with one or more other persons, to be satisfactory bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Debentures, or attempt to Underwriters' Counselinduce any person to purchase any Debentures; and to not and use its reasonable best efforts to not permit any of its affiliated purchasers to make bids or purchases for the purpose of creating actual, and or apparent, active trading in or of raising the Company will furnish price of the Debentures;
(o) prior to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a period of three (3) years after the date hereofClosing Date, the Company will furnish to its stockholders, as soon as practicable, each annual report (including financial statements audited by independent public accountants), and each report on Form 10-KSB (or 10-K, as the case may be), including each amendment thereto, a copy of not issue any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest other communication directly or indirectly or hold any press conference with respect to the financial community in respect of the Company, its condition, financial or its otherwise, or earnings, business affairs which was released or prepared by or on behalf business prospects, without the prior consent of the Company; and
(ii) any additional information of a public nature concerning Initial Purchaser, unless in the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts judgment of the Company and its subsidiary are consolidatedcounsel, and after notification to the Initial Purchaser, such press release or communication is required by law;
(p) 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; and
(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) to maintain a transfer agent and, if necessary under the laws of the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock.
(s) for a period of five (5) years from the date hereof, to use its best efforts to maintain the PORTAL (or after the Shelf Registration Statement, Nasdaq Stock Market listing) listing of the Debentures), to the extent outstanding, and the American Stock Exchange (or New York Stock Exchange or Nasdaq Stock Market) listing of the Common Stock.
Appears in 1 contract
Sources: Purchase Agreement (Diagnostic Retrieval Systems Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as follows:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purposesuch purposes, (iv) of the receipt of any comments from the Commission; and (v) within the period of time referred to in Section 5(h) hereof, of any request by change in the Commission for Company's financial condition , business, prospects, properties, net worth or results of operations, or of any amendment event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any amendment material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement to the Prospectus (as then amended or for additional informationsupplemented) to comply with the Act or any other law. If at any time the Commission or the state securities commission authority of shall issue any state shall enter a stop order or suspend such qualification at any timesuspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain promptly the withdrawal or lifting of such orderorder at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company shall will promptly file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant any amendment or supplement to Rule 424(b)(1) (orthe Registration Statement or the Prospectus that may, if applicable and if consented to by in the judgment of the Company or the Representative, pursuant to Rule 424(b)(4)) not later than be required by the Act or requested by the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice furnish a copy of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Registration Statement or to the Prospectus (including or any revised prospectus which the Company proposes for use by Issuer Free Writing Prospectus to you and counsel to the Underwriters in connection and obtain your express written consent prior to filing any of those with the offering of Commission.
(e) The Company will not make any offer relating to the Securities which differs from Common Stock that would constitute an Issuer Free Writing Prospectus without your express prior written consent.
(f) The Company will retain in accordance with the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or Act all Issuer Free Writing Prospectuses not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under the Act, the Company shall use all reasonable efforts to comply with all requirements imposed upon it by the Act ; and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements thereto. If if at any time when a prospectus relating to after the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, date hereof any event events shall have occurred as a result of which, in the opinion of counsel for the Company or Underwriters' Counsel, the which any Issuer Free Writing Prospectus, as then amended or supplemented, includes would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(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 best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(j) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as required for the distribution of the Shares.
(k) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each provided, however, that the requirements of this paragraph shall be satisfied to the extent that such amendment or supplement to be satisfactory to Underwriters' Counsel, earnings statements are available on XXXXX 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 requestCompany's website.
(gl) During a the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters, (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. ("FINRA") or the Nasdaq Stock Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other non-confidential information concerning the Company as you may reasonably request; except, in each case, if available on XXXXX or the Company's website.
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement required to be fulfilled by the Company, the Company agrees to reimburse you and the other Underwriters for all out-of-pocket expenses (including financial travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith, provided that such reimbursement is limited to $200,000 in the aggregate.
(n) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited by independent public accountantsunder the caption "Use of Proceeds" in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th day after the date of the Prospectus (the "Lock-Up Period"), and each report on Form 10-KSB the Company will not, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or 10enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, in each case, copies of which have been filed with the Commission or otherwise made available to the Underwriters), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options, rights or warrants pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof, in each case, copies of which have been made filed with the Commission or otherwise made available to the Underwriters), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representative on behalf of the Underwriters, and to cause each individual set forth on Schedule III hereto to furnish to the Representative, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the "Lock-KUp Agreements").
(p) Prior to the Closing Date or the Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(r) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on NASDAQ.
(t) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the Underwriters Underwriter as follows:
(a) The Registration Statement has been declared effective by Commission order dated October 26, 2005. The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective with the Commission be maintained as promptly as practicable effective, and will not at any timeadvise you promptly and, whether before or after if requested by you, will confirm such advice in writing (i) if and when the Registration Statement is no longer effective and the time and date of the Registration Statement, file any filing of any post-effective amendment to the Registration Statement or any supplement to any Preliminary Prospectus or the Prospectus or file any document under and the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised time and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the 1933 Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the 1933 Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; such purposes and (v) within the period of time referred to in Section 5(e) below, of any request by change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement, the Preliminary Prospectus or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Preliminary Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the 1933 Act or any other Law (as defined in Section 6(k) below). If at any time the Commission for shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriter with copies of the form of Prospectus, in such number as the Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If the Commission supplement and (ii) you have not reasonably objected to such filing, amendment or the state securities commission authority of any state shall enter supplement after being so advised and having been given a stop order reasonable opportunity to review such filing, amendment or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordersupplement.
(cd) The Company shall file the Prospectus (in form and substance satisfactory Prior to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement Underwriting Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(e) hereof, the Company consents to the use, in accordance with the provisions of the 1933 Act and (ii) with the fifteenth business day after securities or Blue Sky laws of the effective jurisdictions in which the Shares are offered by the Underwriter and by dealers, prior to the date of the Registration StatementProspectus, of each Preliminary Prospectus so furnished by the Company.
(de) The As soon after the execution and delivery of this Underwriting Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriter a prospectus is required by the 1933 Act to be delivered in connection with sales by the Underwriter or a dealer (the "Prospectus Delivery Period"), and for so long a period as you may request for the distribution of the Shares, the Company will give the Representative notice of its intention to file or prepare any amendment deliver to the Registration Statement Underwriter and each dealer, without charge, as many copies of the Prospectus (including any post-effective amendment) or and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the 1933 Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the Underwriters Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required 1933 Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the Act1933 Act and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriter is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the Act1933 Act or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment or supplement in accordance with Section 10 of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counselthereto, and the Company will furnish to the Underwriters Underwriter, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such amendment jurisdictions as you may reasonably designate and will file such consents to service of process or supplement other documents as soon may be reasonably necessary in order to effect and maintain such registration or qualification for so long as available required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Underwriting Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such quantities as Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of not less than one year after the Underwriters may requestdate hereof.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Commission Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11 (a) of the 1933 Act.
(h) During a the Prospectus Delivery Period and for not less than one year after the date hereof, the Company will file and furnish all documents required to be filed or furnished with the Commission pursuant to Sections 13, 14 and 15 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Commission regulations and rules ("Commission Regulations"), in the manner and within the time periods required by the Exchange Act and Commission requirements of Nasdaq National Market ("Nasdaq") and the National Association of Securities Dealers, Inc. (the "NASD") or any national securities exchange where any Company securities are listed.
(i) During the period of three (3) beginning on the date hereof and ending five years after from the date hereof, the Company will furnish to its stockholders, you (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, the NASD or Nasdaq or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Underwriting Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 11 hereof, other than clauses (ii), (iv) or (vii)) or if this Underwriting Agreement shall be terminated by the Underwriter because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Underwriting Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including financial travel expenses and the fees and expenses of counsel for the Underwriter, but excluding wages and salaries paid by you) reasonably incurred by you III connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A under the 1933 Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the 1933 Act.
(m) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the 1933 Act, without your prior written consent, the Company will not and will cause each of its subsidiaries to not (i) directly or indirectly, issue, announce the intention to sell, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the 1933 Act with respect to any of the foregoing, or (ii) enter into any swap, forward contract, or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences or risks of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriter pursuant to this Underwriting Agreement and each report on Form 10-KSB except for (x) sales of shares of Common Stock to employees under the Company's Employee Stock Purchase Plan (as described in the Prospectus) (y) grants of options pursuant to the Company's 1999 Stock Option Plan (as described in the Prospectus) and (z) except for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under the Company's 1999 Stock Option Plan.
(n) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of the undertakings contained in the Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(q) The Company filed with Nasdaq a notice of sale of additional shares on September 12, 2005, and will timely file with Nasdaq all documents and notices required by Nasdaq of companies that have or will issue securities that are consolidatedtraded on Nasdaq.
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(s) The Company will have an annual audit prepared by an accounting firm that is registered and in good standing with the Public Company Accounting Oversight Board ("PCAOB") and is "independent" of the Company under the 1933 Act, the Exchange Act and the PCAOB's rules.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as followsthat:
(a) The Company shall will use its best efforts to cause the Registration Statement and any amendments thereto to become effective under the Act, 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 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 as 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 as practicable 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 the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filings thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange Act or and the Rules and Regulations.
(bc) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Representative prepare and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective file with the Commission andCommission, if promptly upon the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) request of the issuance by the Commission of Representatives, any stop order amendments or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment supplements to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities Stock which differs from the corresponding prospectus on file at the Commission, as the case may be Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) 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 no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as 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 or the Underwriter's Preferred Shares 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 requirements of Section 10(a)(3) of the Act.
(e) 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 60 days after the close of the period covered thereby, an appropriate amendment or supplement earnings statement (in accordance form complying with the provisions of Rule 158 under the Act) which will be in reasonable detail (but which need not be audited) and which will comply with Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and covering a period of at least twelve months beginning not later than the Company will furnish to first day of the Underwriters copies Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of such amendment or supplement as soon as available and in such quantities as the Underwriters may requestRegistration Statement.
(g) During 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 three the Stock.
(3h) 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 the period of five years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, as soon as practicableupon request, to each of the other Underwriters, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:Representatives, as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or the NASD.
(i) every press release The Company will file with the Nasdaq National Market all documents and every material news item 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 Nasdaq National Market.
(j) The Company will use the net proceeds received by it from the sale of the Stock in the manner specified in the Prospectus under "Use of Proceeds".
(k) During a period of 180 days from the date of the Pricing Agreement, the Company will not, without prior written consent of Xxxx Xxxxxx Xxxxxxxx Inc., directly or article indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of interest or enter into any agreement to sell, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to reservations, agreements or employee benefit plans disclosed in the Registration Statement).
(l) At the time this Agreement is executed, the Company shall have furnished to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of Representatives a public nature concerning the Company (letter from each officer and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts director of the Company and its subsidiary are consolidated_________ 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 Xxxx Xxxxxx Xxxxxxxx Inc., directly or indirectly, (i) sell, offer to sell, grant any option for the sale of, or otherwise dispose of or transfer, any shares of Common Stock beneficially owned by such person or any securities convertible into or exchangeable or exercisable for such Common Stock, whether now owned or 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 of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
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 every reasonable effort to cause the Registration Statement and any amendments thereto to become effective with the Commission as promptly as practicable effective, if it has not already become effective, and will not at any timeadvise you promptly and, whether before or after the effective date of the Registration Statementif requested by you, file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with a copy, or to which the Representative shall have objected within two (2) business days after its receipt thereof or which is not will confirm such advice in compliance with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Representative and confirm the notice in writing, writing (i) when the Registration Statement, as amended, becomes Statement has become effective with and the Commission and, if the provisions time and date of Rule 430A promulgated under the Act will be relied upon, when any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus has been filed in accordance with said Rule 430A and when the time and date that any post-effective amendment to the Registration Statement becomes effective, ; (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act; (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; (iv) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities Shares for offering or sale in any jurisdiction or of the initiation, or the threatening, initiation of any proceeding for that purpose, (iv) of the receipt of any comments from the Commissionsuch purposes; and (v) within the Prospectus Delivery Period referred to in Section 5(d) below, of any request change in the Company's condition (financial or other), business, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. If the Company elects, with the consent of the Representative, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request, as well as copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(d) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the Commission for several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(c) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or for additional information. If the Commission supplement and (ii) you have not reasonably objected to such filing, amendment or the state securities commission authority of any state shall enter supplement after being so advised and having been given a stop order reasonable opportunity to review such filing, amendment or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such ordersupplement.
(cd) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (ii) the fifteenth business day after "Prospectus Delivery Period"), and for so long a period as you may request for the effective date distribution of the Registration Statement.
(d) The Shares, the Company will give deliver to each Underwriter and each dealer, without charge, as many copies of the Representative notice Prospectus (and of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus (including and of any revised prospectus amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Company proposes for use Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Securities which differs from the corresponding prospectus on file at the Commission, Shares and for such period of time thereafter as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus Prospectus is required to be filed pursuant to Rule 424(b) of the Rules and Regulations), and will furnish the Representative with copies of any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,
(e) The Company shall endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representative may designate to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution, and shall make such applications, file such documents and furnish such information as may be required for such purpose; provided, however, the Company shall not be required to qualify as a foreign corporation or file a general or limited consent to service of process in any such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use all reasonable efforts to file and make such statements or reports at such times as are or may reasonably be required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required Act to be delivered under the Act, the Company shall use all reasonable efforts to comply in connection with all requirements imposed upon it sales by the Act and the Exchange Act, as now and hereafter amended and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of any Underwriter or dealings in the Securities in accordance with the provisions hereof and the Prospectus, or any amendments or supplements theretodealer. If at any time when a prospectus relating prior to the Securities later of (i) the completion of the distribution of the Shares pursuant to the offering contemplated by the Registration Statement or (ii) the Underwriter's Preferred expiration of prospectus delivery requirements with respect to the Shares is required to be delivered under Section 4(3) of the ActAct and Rule 174 thereunder, any event shall have occurred as a result occur that in the judgment of which, the Company or in the opinion of counsel for the Company or Underwriters' Counsel, Underwriters is required to be set forth in the Prospectus, Prospectus (as then amended or supplemented, includes an untrue statement of a material fact ) or omits to state any material fact required to should be stated set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with the ActAct or any other law, the Company will notify the Representative promptly forthwith prepare and, subject to Sections 5(a) and prepare and 5(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(e) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or supplement qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in accordance order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing upon its receipt of written notice thereof.
(f) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, within 75 days, which consolidated earnings statement shall satisfy the provisions of Section 10 11(a) of the Act, each such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and in such quantities as the Underwriters may request.
(g) During a the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act within the time periods required by the Exchange Act.
(h) During the period of ending three (3) years after from the date hereof, the Company will furnish to its stockholdersyou and, upon your request, to each of the other Underwriters: (i) as soon as practicableavailable, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq Stock Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 12 hereof, or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable out-of-pocket expenses (including financial reasonable travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries and other overhead costs paid by you) reasonably incurred by you in connection herewith.
(j) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder in accordance in all material respects with the statements audited under the caption "Use of Proceeds" in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) For a period of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not: (i) directly or indirectly, issue, sell, offer or contract to sell or otherwise dispose of or transfer any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of Company Securities whether any such swap or transaction is to be settled by independent public accountants)delivery of Common Stock or other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement and except for: (i) grants of options or other equity-based awards pursuant to the Company's stock option, stock bonus or other stock plans or arrangements in effect as of the date hereof and described in the Prospectus, (ii) issuances of shares of Common Stock upon the exercise of options or other equity-based awards outstanding as of the date hereof under such stock plans, (iii) shares of Common Stock issuable upon exercise of warrants previously granted to the Company's organizers, and each report on Form 10-KSB (iv) shares of Common Stock and options to purchase Common Stock issued in connection with any acquisition approved by the Company's Board of Directors.
(m) Prior to the Closing Date or 10-Kthe Additional Closing Date, as the case may be), including each amendment theretothe Company will furnish to you, a copy as promptly as possible, copies of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report to the Representative and will deliver to the Representative:
(i) every press release and every material news item or article of interest to the financial community in respect of the Company, or its affairs which was released or prepared by or on behalf of the Company; and
(ii) any additional information of a public nature concerning the Company (and any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing unaudited interim consolidated financial statements will be on a consolidated basis to the extent that the accounts of the Company and its subsidiary subsidiaries for any quarterly period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(o) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(p) The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are consolidatedtraded on the NASDAQ.
(q) For a period of twelve (12) months after the date hereof, the Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for the Common Stock.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Financial Partners Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with each of the several Underwriters as 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 the receipt of any comments from the Commission and any request by the Commission for any amendment of or supplement to the Registration Statement and any amendments thereto to become effective with or the Commission as promptly as practicable Prospectus or for additional information, and will not at any time, whether before or after the effective date of the Registration Statement, time file any amendment to the Registration Statement or supplement to the Prospectus or file any document under the Act or the Exchange Act before termination of the offering of the Preferred Shares by the Underwriters of which the Representative shall not previously have been advised and furnished with submitted to the Representatives a copy, reasonable time prior to the proposed filing thereof or to which the Representative Representatives shall have objected within two (2) business days after its receipt thereof reasonably object in writing or which is not in compliance with the Act, the Exchange 1933 Act or and the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the . The Company will advise the Representative and confirm the notice in writing, (i) when the Registration Statement, as amended, becomes effective with the Commission and, if the provisions of Rule 430A promulgated under the Act will be relied upon, Representatives promptly when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective, (ii) of the issuance by the Commission of any stop order or of the initiation or the threatening of any proceeding suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or the institution of proceedings for that purpose, (iii) of the issuance by the Commission or by any state securities commission of any proceedings for the suspension of the qualification of any of the Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the receipt of any comments from the Commission; and (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information. If the Commission or the state securities commission authority of any state shall enter a stop order or suspend such qualification at any time, the Company will make every effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance satisfactory to the Representative) or transmit the Prospectus by a means reasonably calculated to result in filing with the Commission pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representative, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (i) the second business day following the execution and delivery of this Agreement and (ii) the fifteenth business day after the effective date of the Registration Statement.
(d) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities which differs from the corresponding prospectus on file at the Commission, as the case may be at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be timely filed pursuant to Rule 424(b) of the Rules and Regulations). The Company will advise the Representatives promptly when any post-effective amendment to the Registration Statement shall become effective, and will furnish or any supplement to the Representative with copies of Prospectus or any such amendment or supplement no later than two (2) business days after its receipt thereof prior to such proposed filing or use, as the case may be,amended Prospectus shall have been filed.
(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 Shares 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. Shares.
(c) If at any time when a prospectus relating to the Securities or the Underwriter's Preferred Shares is required to be delivered under the Act, 1933 Act any event shall have occurred occurs as a result of which, in which the opinion of counsel for the Company or Underwriters' Counsel, the Prospectus, as then amended or supplemented, includes Prospectus would include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act1933 Act or the Rules and Regulations, the Company will promptly notify the Representative Representatives thereof and will prepare an amended or supplemented Prospectus (in form and substance reasonably satisfactory to counsel to the Underwriters) or, with the consent of counsel to the Underwriters, make an appropriate filing pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission; and, in case any Underwriter is required to deliver a prospectus relating to the Shares 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 First Closing Date, signed copies of the Registration Statement and all amendments thereto (including all financial statements and exhibits thereto and all documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, 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 copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAX"), except to the extent permitted by Regulation S-T. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Shares is required under the 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 Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T.
(e) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 1933 Xxx) xxich will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act, covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the Shares 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 Shares for that purpose; PROVIDED, HOWEVER, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file with such statements and reports as are or may be required of it as the Commission an appropriate amendment or supplement in accordance with Section 10 issuer of the Act, each Shares to continue such amendment or supplement to be satisfactory to Underwriters' Counsel, and the Company will furnish to the Underwriters copies of such amendment or supplement as soon as available and qualifications in such quantities effect for so long a period as the Underwriters Representatives may requestreasonably request for the distribution of the Shares.
(g) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information, in reasonable detail which may be unaudited. During a the period of three (3) five years after from the date hereof, the Company will furnish deliver to its stockholdersthe Representatives and, as soon as practicableupon request, to each of the other Underwriters, copies of each annual report (including financial statements audited by independent public accountants), of the Company and each other report on Form 10-KSB (or 10-K, as furnished by the case may be), including each amendment thereto, a copy of any report on Form 10-QSB (or 10-Q, as the case may be), including any amendment thereto and each current report on Form 8-K, including any amendment thereto, and will promptly deliver a copy of each such report Company to the Representative its shareholders; and will deliver to the Representative:Representatives, as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its securityholders as such and, as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange.
(h) The Company will use its best efforts to effect and to maintain the listing of the Shares on the New York Stock Exchange.
(i) every press release and every material news item or article Immediately following the execution of interest to this Agreement, the financial community in respect Company will prepare a prospectus supplement, dated the date hereof (the "Prospectus Supplement"), containing the public offering price of the CompanyShares, or its affairs which was released or prepared by or on behalf the underwriting discounts and commissions, the plan of distribution of the Company; andShares 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 the Prospectus (including such Prospectus Supplement).
(j) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(k) During a period of 90 days from the date of this Agreement, the Company will not, without the prior written consent of ____________________, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any additional information swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of a public nature concerning ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock, other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company (and pursuant to any future subsidiary) or its businesses which the Representative may request. During such three (3)-year period, if the Company has an active subsidiary, the foregoing financial statements will be on a consolidated basis to the extent that the accounts employee stock option plan of the Company referred to in the Prospectus.
(l) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code.
(m) In accordance with the Cuba Act (if applicable) and its subsidiary are consolidatedwithout limitation to the provisions of Section 6 hereof, the Company will indemnify each Underwriter against any and all losses, claims, damages, liabilities and expenses (including attorneys' fees) arising out of or based upon any violation by the Company of the Cuba Act.
Appears in 1 contract
Sources: Underwriting Agreement (Burnham Pacific Properties Inc)