Covenants of the Company and the Selling Stockholders. The Company covenants and agrees with the several Underwriters that: (a) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (b) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (c) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request. (e) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (f) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available. (g) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. (h) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc.. (i) The Company has caused each officer, director and all securityholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing. (j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act"). (l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (n) The Selling Stockholders covenant and agree with the several Underwriters that: (i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. (ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..BT Alex. Brow▇ ▇▇▇orporated, except for the grant of options to purchase shares of Common Stock pursuant to the 1998 Stock Option, Deferred Stock and Restricted Stock Plan and shares of Common Stock issued pursuant to the exercise of options granted under such plan and the grant of purchase rights and issuance of shares under the 1998 Employee Stock Purchase Plan, provided that such options and grants shall not vest, or the Company shall obtain the written consent of the holder thereof not to transfer such shares, until the end of such 180-day period.
(iix) The Company will list, subject to notice of issuance, the Shares on the New York Stock Exchange.
(x) The Company has caused each officer, director director, stockholder and all securityholders optionholder of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree agrees, subject to certain limited exceptions set forth therein, not to offer, pledge, sell, contract to sell, sell short any option or contract to purchase, sell short, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of of, directly or indirectly, any shares of Common Stock of the Company or other capital stock of the Companyany securities convertible into or exercisable or exchangeable for Common Stock, or enter into any other securities convertibleswap or similar agreement that transfers, exchangeable in whole or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of in part, any of the foregoing (or as to which such person has economic consequences of ownership of the right to direct the disposition of) Common Stock, for a period of 90 days after commencing on the date of this Agreement, directly or indirectlythe Prospectus and continuing to a date 180 days after such date, except with the prior written consent of Deutsche Bank Securities Inc. BT Alex. Brow▇ ▇▇▇orporated ("Lockup AgreementsLOCKUP AGREEMENTS") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing).
(jxi) The Company has caused each stockholder of the Company to enter into, on or prior to the date of this agreement, an S Corporation Termination, Tax Allocation and Indemnification Agreement substantially in the form filed as an exhibit to the Registration Statement (the "S CORPORATION AGREEMENT").
(xii) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file include such disclosure in reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kxiii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or the Subsidiary to register as an investment company under the Investment Company Act (the "1940 Act").
(lxiv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Class A Common Stock.
(mxv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nb) The Each of the Selling Stockholders covenant covenants and agree agrees with the several Underwriters that:
(i) No offeringThe Selling Stockholder will not offer, salepledge, short sale sell, contract to sell, sell any option or other disposition of contract to purchase, sell short, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or other capital stock of the Company or other any securities convertible, exchangeable convertible into or exercisable or exchangeable for Common Stock Stock, or derivative of Common Stock owned by such Selling Stockholder enter into any swap or request the registration for the offer similar agreement that transfers, in whole or sale of in part, any of the foregoing (or as to which such Selling Stockholder has economic consequences of ownership of the right to direct the disposition of) will be made Common Stock, for a period of 90 days after commencing on the date of this Agreementthe Prospectus and continuing to a date 180 days after such date, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.Alex. Brow▇ & ▇ons Incorporated; provided, however, that such restrictions shall not apply to the Shares; and, provided, further, that such restrictions shall not apply to shares of Class A Common Stock purchased by the Selling Stockholder in the open market following the offering of the Shares.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders Stockholder agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such The Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 beginning on the date hereof and continuing to, and including, the date that is 180 days after the date of the final Prospectus relating to the offering contemplated under this AgreementAgreement (the “Lock-Up Period”), directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Jefferies, except (i) the filing of a Registration Statement on Form S-8 or Form S-8/S-3 in connection with an employee stock compensation plan or agreement of the Company, (ii) issuances of Common Stock of the Company pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or non-employee related options, in each case outstanding on the Closing Date, (iii) grants of employee stock options, and the exercise of such options, pursuant to the terms of a plan or instrument disclosed in the Prospectus and (iv) the issuance of shares of Common Stock issued as consideration in connection with an acquisition or acquisitions; provided, however, that with respect to (iv) above, prior to the issuance of such shares the recipients of such shares shall sign an agreement in form and substance reasonably satisfactory to Jefferies under which each such recipient agrees for the remaining Lock-Up Period not offer, sell, sell short or otherwise dispose of any such shares without the prior written consent of Jefferies.
(iix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer, officer and director and all securityholders Selling Stockholder of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of the final Prospectus relating to the offering contemplated under this Agreement, directly or indirectlyindirectly (“Lockup Agreements”), except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writingJefferies.
(jxi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kxii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act (the "1940 Act").
(lxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(mxiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nxv) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(b) Each of the Selling Stockholders covenant covenants and agree agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Each Selling Stockholder shall have delivered to the Representatives on or request the registration for the offer or sale of any of the foregoing (or as prior to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with Agreement the prior written consent of Deutsche Bank Securities Inc.Lockup Agreement referenced in Section 4(a)(x) hereof.
(ii) In order to document the Underwriters' ’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,any securities of the Company.
(c) Each Selling Stockholder agrees (i) for a period of 180 days after the date of the final Prospectus related to the offering contemplated under this Agreement, not to exercise or attempt to exercise any rights such Selling Stockholder may have to register, or cause to be registered, under applicable securities laws, its securities of the Company and (ii) that the registration of such Selling Stockholder’s Shares under the Registration Statement satisfies in full the Company’s obligation to include securities of such Selling Stockholder under such Registration Statement. If, during the period of time as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, there is any change in the information referred to in Section 1(b)(iv) above, the Selling Stockholder will immediately notify the Company, the Attorneys and the Underwriters in writing of such change.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, information and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four three signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ) and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Alex. ▇▇▇▇▇ & Sons Incorporated, provided, however, that the Company may grant options to purchase, and issue, shares of Common Stock under the stock option plan of the Company which is in effect as of the date of this Agreement and is described in the Prospectus.
(iix) The Company will use its best efforts to have the Shares included for quotation on The Nasdaq National Market.
(x) The Company has caused each officerexecutive officer and director of the Company, director and all securityholders each stockholder of the Company listed on Schedule III, to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. BT Alex. ▇▇▇▇▇ Incorporated ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing).
(jxi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kxii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act (the "1940 Act").
(lxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common StockCommon.
(mxiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nb) The Each of the Selling Stockholders covenant covenants and agree agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such the Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such the Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.BT Alex. ▇▇▇▇▇ Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,any securities of the Company.
Appears in 1 contract
Sources: Underwriting Agreement (Xomed Surgical Products Inc)
Covenants of the Company and the Selling Stockholders. (A) The Company Company, and where specifically stated to be a covenant of the Option Selling Stockholders, each of the Option Selling Stockholders, covenants and agrees with the several Underwriters thatas follows:
(a) The Company will (A) use its best efforts to cause shall prepare the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at and file such Prospectus (or a term sheet as permitted by Rule 434(b) under the time Securities Act) pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of effectiveness business on the second business day following the execution and delivery of this Agreement, or, if such second business day would be more than fifteen business days after the Registration Statement in reliance on Rule 430A Effective Date of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(b) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto thereto, such earlier date as would permit such Prospectus to be filed without filing a post-effective amendment as set 24 forth in Rule 430A(a)(3) under the Securities Act, and shall promptly advise the Representatives (i) when the Registration Statement shall have become effective, (Bii) of receipt of when any comments from the Commissionamendment thereof shall have become effective, (Ciii) of any request of by the Commission for any amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (Div) of the prevention or suspension of the use of any preliminary prospectus or the Prospectus or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use institution or threatening of any proceeding for that purpose and (v) of the Prospectus or receipt by the Company of any notification with respect to the suspension of the institution qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceedings proceeding for that such purpose. The Company will shall not file any amendment of the Registration Statement or amendment or supplement to the Prospectus unless the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain as soon as possible the lifting withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if issuedit shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall (i) notify the Representatives and (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 6(A), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance.
(c) The Company will cooperate shall make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applicationsCompany's fiscal year), file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall an earnings statement (which need not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution audited) of the SharesCompany, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver shall furnish to the Representatives at or before and counsel for the Closing DateUnderwriters, four without charge, signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any preliminary prospectus and the exhibits filed therewith that may reasonably be requested), Prospectus and of all any amendments thereto, thereof and supplements thereto as the Representatives may reasonably request.
(e) The Company will comply shall cooperate with the Act Representatives and their counsel in endeavoring to qualify the Rules Shares for offer and Regulations, and sale under the Securities Exchange Act or "Blue Sky" laws of 1934, such jurisdictions as amended (the "Exchange Act"), Representatives may designate and shall maintain such qualifications in effect so long as required for the rules and regulations of the Commission thereunder, so as to permit the completion of the initial distribution of the Shares by the Underwriters; provided, however, that neither the Company nor any Option Selling Stockholder shall be required in connection therewith to qualify as contemplated a foreign corporation or to execute a general consent to service of process in this Agreement and the Prospectus. If during the period any jurisdiction or subject itself to taxation as doing business in any jurisdiction in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawnot otherwise subject.
(f) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering For a period of at least 12 consecutive months beginning two years after the effective date of this Agreement, the Registration StatementCompany shall supply to the Representatives, which earning statement and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock and furnish to the Representatives a copy of each annual or other report it shall satisfy be required to file with the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableCommission.
(g) Prior to Without the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements prior written consent of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company willRepresentatives, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(h) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by neither the Company otherwise than hereunder and Common Stock issued by nor the Company pursuant Option Selling Stockholders shall issue, offer to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..
(i) The Company has caused each officer, director and all securityholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offersell, sell, sell short distribute or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except register with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(k) The Company shall not investCommission, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company will not takeencumber or dispose of, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation equity securities of the price of Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company.
(n) The Selling Stockholders covenant and agree with ), provided however, that the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any Company may issue shares of Common Stock or other capital stock Class B Common Stock, as the case may be, (i) in connection with the offering of the Company Firm Shares and the Option Shares, (ii) pursuant to any employee benefit plan, (iii) upon conversion of the Notes (as defined in the Prospectus) or other securities convertibleexercise of options or warrants outstanding on the date hereof, exchangeable or exercisable for Common Stock or derivative (iv) upon conversion of shares of Common Stock owned by such Selling Stockholder or request into Class B Common Stock pursuant to the registration for the offer or sale of any terms of the foregoing Company's Restated Certificate of Incorporation (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.following amendment
Appears in 1 contract
Sources: Underwriting Agreement (All American Communications Inc)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (Aa) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (Bb) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(bii) The Company will advise the Representatives promptly (Aa) when the Registration Statement or any post-effective amendment thereto shall have become effective, (Bb) of receipt of any comments from the Commission, (Cc) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (Dd) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four three signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement agreements for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Alex. ▇▇▇▇▇ & Sons Incorporated; provided, however, that the Company shall be permitted (A) to grant options to purchase Common Stock under its employee stock option plans, (B) to issue Common Stock upon exercise of currently outstanding options, and (C) to issue shares of Common Stock under its employee stock purchase plan; provided further that no options granted under (A), above, shall vest within 90 days after the effective date of the Registration Statement.
(iix) The Company will file an application for additional listing of the Shares on The Nasdaq National Market.
(x) The Company has caused each officerofficer and director, director and all securityholders certain stockholders of the Company to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to that, without the prior written consent of Alex. ▇▇▇▇▇ & Sons Incorporated, such person will not, directly or indirectly offer, sell, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock (including, without limitation, shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares which may be deemed to be beneficially owned by such person or request on the registration for the offer or sale of any effective date of the foregoing Registration Statement in accordance with the rules and regulations of the Commission and shares of Common Stock which may be issued upon exercise of a stock option or warrant) or enter into any Hedging Transaction (or as defined therein) relating to which such person has the right to direct the disposition of) Common Stock for a period of 90 days after the effective date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. Registration Statement ("Lockup Agreements") except as may otherwise be permitted under the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writingAgreements.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kxi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or the Subsidiaries to register as an investment company under the Investment Company Act (the "1940 Act")▇▇▇▇ ▇▇▇.
(lxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(mxiii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nb) The Each of the Selling Stockholders covenant covenants and agree agrees with the several Underwriters that:
(i) No offeringWithout the prior written consent of Alex. ▇▇▇▇▇ & Sons Incorporated, such Selling Stockholder will not, directly or indirectly offer, sell, pledge, contract to sell (including any short sale), short sale grant any option to purchase or other disposition otherwise dispose of any shares of Common Stock or other capital stock (including, without limitation, shares of Common Stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock which may be deemed to be beneficially owned by such Selling Stockholder on the effective date of the Registration Statement in accordance with the rules and regulations of the Commission and shares of Common Stock which may be issued upon exercise of a stock option or request warrant) or enter into any Hedging Transaction (as defined below) relating to the registration for the offer or sale of any Common Stock (each of the foregoing (or referred to as to which such Selling Stockholder has the right to direct the disposition ofa "Disposition") will be made for a period of 90 days after the effective date of this Agreement, directly or indirectly, by the Registration Statement (the "Lockup Period"). The foregoing restriction is expressly intended to preclude such Selling Stockholder otherwise from engaging in any Hedging Transaction or other transaction which is designed to or reasonably expected to lead to or result in a Disposition during the Lockup Period even if the securities would be disposed of by someone other than hereunder such Selling Stockholder. "Hedging Transaction" means any short sale (whether or with not against the prior written consent box) or any purchase, sale or grant of Deutsche Bank Securities Inc.
any right (iiincluding, without limitation, any put or call option) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to any security (other than a broad- based market basket or index) that includes, relates to or derives any significant part of its value from the transactions herein contemplatedCommon Stock. Notwithstanding the foregoing, each such Selling Stockholder may transfer any or all of the Selling Stockholders agrees Shares by gift, will or intestacy; provided, however, that in any such case it shall be a condition to deliver the transfer that the transferee execute an agreement stating that the transferee is reviewing and holding the Shares subject to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed provisions of this Agreement and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations there shall be no further transfer of such Shares except in lieu thereof)accordance with this Agreement.
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.
Appears in 1 contract
Sources: Underwriting Agreement (Powerwave Technologies Inc)
Covenants of the Company and the Selling Stockholders. A. The Company covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if as promptly as possible and to maintain it in effect. If the procedure in Registration Statement has become or becomes effective pursuant to Rule 430A of the Rules and Regulations is followedRegulations, to prepare and timely file or filing of the Prospectus with the Commission is otherwise required under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company will file the Prospectus, properly completed, with the Commission subsequent pursuant to Rule 424(b) of the Regulations within the time period therein prescribed and will provide evidence satisfactory to the date Representatives of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(b) such timely filing. The Company will promptly advise the Representatives promptly Representatives, and confirm such advice in writing, (A1) when the Registration Statement or any post-effective amendment thereto shall have has become effective, (B2) of receipt the initiation or threatening of any comments from proceedings for, or receipt by the Commission, (C) Company of any request notice with respect to, the suspension of the Commission for amendment qualification of the Registration Statement Shares for sale in any jurisdiction or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement and (3) of receipt by the Company or any representative of or attorney for the Company of any other communications from the Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Prospectus or the transactions contemplated by this Agreement. The Company will make every reasonable effort to prevent the issuance of an order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purposepost-effective amendment thereto and, if any such order is issued, to obtain its lifting as soon as possible. The Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus before or after the Effective Date to which the Representatives shall reasonably object in writing after being timely furnished in advance a copy thereof unless the Company shall conclude, upon the advice of counsel, that any such amendment must be filed at a time prior to obtaining such consent.
(b) During the period of time when the Prospectus is required to be delivered under the Act, the Company shall comply with all requirements imposed upon it by the Act, as now or hereafter amended, and by the Regulations, as from time to time in force, so far as may be necessary to permit the continuance of sales of and dealings in the Shares as contemplated by the provisions hereof and by the Prospectus. If, at any time when a prospectus relating to the Shares is required to be delivered under the Act, any event shall occur as a result of which the Prospectus as then amended or supplemented shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the Act and the Regulations, the Company shall notify the Representatives promptly and prepare and file with the Commission an appropriate post-effective amendment to the Registration Statement or supplement to the Prospectus (in either case, in form and substance reasonably satisfactory to the Representatives) that will correct such untrue statement or such omission and will use its best efforts to prevent the issuance of have any such stop order preventing or suspending post-effective amendment to the use of the Prospectus and to obtain Registration Statement declared effective as soon as possible the lifting thereof, if issuedpossible.
(c) The Company will shall promptly deliver to the Representatives two manually-signed copies of the Registration Statement, including exhibits and all documents incorporated by reference therein and all amendments thereto, and to those persons (including the Representatives and counsel for the Underwriters) whom the Representatives identify to the Company, such number of conformed copies of the Registration Statement, each preliminary prospectus, the Prospectus, all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and the Prospectus or any amendment thereof or supplement thereto, without exhibits, as the Representatives reasonably may request.
(d) If and to the extent such qualification or registration may be necessary, the Company shall cooperate with the Representatives Underwriters and Weil, Gotshal & ▇▇▇▇▇▇ LLP ("Underwriters' Counsel") in endeavoring connection with their efforts to qualify or register the Shares for sale under the securities (or "Blue Sky") laws of such jurisdictions as the Representatives may reasonably have designated in writing shall request, will execute such applications and will make such applications, file such documents, documents and furnish such information as may be reasonably required for such purpose and will comply with such laws so as to continue such qualification in effect for so long as may be required to complete the distribution of the Shares; provided, however, that purpose, provided the Company shall not be required to qualify as a foreign corporation in any jurisdiction or to file a general consent to service of process in any jurisdiction where it is not now so qualified in any action other than one arising out of the offering or required to file sale of the Shares in such a consent. jurisdiction.
(e) The Company willshall make generally available (within the meaning of Section 11(a) of the Act) to its security holders and to the Representatives, from time to time, prepare and file in such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period numbers as the Representatives may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(e) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any no event not later than 15 months 45 days after the effective date end of the Registration StatementCompany's fiscal quarter in which the first anniversary of the Effective Date occurs, an earning statement (which need not be audited) in reasonable detailearnings statement, covering a period of at least 12 twelve consecutive full calendar months beginning commencing after the effective date of Effective Date, that satisfies the Registration Statement, which earning statement shall satisfy the requirements provisions of Section 11(a) of the Act and Rule 158 of the Rules Regulations.
(f) During a period of 90 days from the date of this Agreement, the Company will not, without the prior written consent of Bear ▇▇▇▇▇▇▇, issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any shares of Common Stock (or any securities convertible into, exchangeable for or evidencing the right to purchase shares of Common Stock or Class B Common Stock) other than the grant of options and Regulations the issuance of Common Stock upon the exercise of options under the Company's stock option plan or pursuant to any other employee benefit plan or program. In addition, the Company has obtained and delivered to Bear ▇▇▇▇▇▇▇ a letter from (i) each of its directors, each of its executive officers and each member of the family of ▇▇ ▇▇▇▇ who, beneficially or of record, owns shares of Common Stock, pursuant to which such person shall agree that, during the period of 90 days from the date of the Prospectus, without the prior written consent of Bear ▇▇▇▇▇▇▇, such person will advise you in writing when such statement has been so made availablenot sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any shares of Common Stock (or any securities convertible into, exchangeable for or evidencing the right to purchase shares of Common Stock).
(g) Prior to During the Closing three years following the Effective Date, the Company will furnish to the Representatives, in such numbers as the Representatives may reasonably request for distribution to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual (i) all reports to its stockholders and copies of (ii) all other documentsreports, reports financial statements, and proxy or information furnished statements filed by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statementsany national securities exchange.
(h) No offeringThe Company will continue to comply with all registration, salefiling, short sale or other disposition of any shares of Common Stock and reporting requirements of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will Exchange Act that may from time to time be made for a period of 90 days after applicable to the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Company.
(i) The Company has caused each officerwill comply with all provisions of all undertakings contained in the Registration Statement.
(j) Prior to the Closing Date and, director and all securityholders if the Option is exercised, until the Additional Closing Date, the Company will not issue any press release or other communication or hold any press conference with respect to the offering of the Company to furnish to youShares, on or prior to the date financial condition, results of this agreementoperations, a letter business or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock prospects of the Company, or any other securities convertiblewithout the Representatives' prior consent, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request which shall not unreasonably be withheld.
B. Each Selling Stockholder, severally and not jointly, covenants and agrees with each Underwriter and the registration for Company as follows:
(a) During the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after from the date of this Agreementthe Prospectus, directly or indirectlysuch Selling Stockholder will not, except with without the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as Bear ▇▇▇▇▇▇▇, sell, offer or agree to sell, or otherwise dispose of or grant to any third party the Company has specifically advised you in writing at right to acquire any shares of Common Stock, or purchase from any third party the signing right to sell to such third party any shares of this Agreement that the Company has not obtained such Lockup AgreementCommon Stock, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale other than those of the Shares as set forth are to be sold by such Selling Stockholder hereunder.
(b) If, within the time during which a prospectus is required under the Act to be delivered in connection with sales of the Shares, such Selling Stockholder shall believe or have any reasonable grounds to believe that the Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements made therein, in the Prospectus light of the circumstances under which they were made, not misleading, or that any representation of such Selling Stockholder contained in this Agreement is untrue, such Selling Stockholder shall notify you and shall file the Company promptly to such reports with the Commission with respect effect.
(c) Prior to the sale termination of the offering of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(k) The Company shall not investcontemplated by this Agreement, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company Selling Stockholder will not take, directly or indirectly, any action designed to cause stabilize or result inmanipulate the market price of the Common Stock, or that has constituted or might reasonably be expected to constitute, the cause or result in stabilization or manipulation of the market price of any securities of the CompanyCommon Stock.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.
(iid) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act Internal Revenue Code of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated1986, each of the as amended, such Selling Stockholders agrees to Stockholder shall deliver to you on or prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 W-9, as applicable (or other applicable form or statement specified by Treasury Department regulations Regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.
Appears in 1 contract
Sources: Underwriting Agreement (Syms Corp)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, reports and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not no later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Alex. ▇▇▇▇▇ & Sons Incorporated except that the Company may, without such consent, issue shares upon exercise of options issued pursuant to the 1996 Stock Option Plan or the 1996 Employee Stock Purchase Plan.
(iix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer, director executive officer and all securityholders each Selling Stockholder of the Company Company's outstanding capital stock to furnish to you, on or prior to the date of this agreementAgreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. Alex. ▇▇▇▇▇ & Sons Incorporated ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing).
(jxi) The Company shall apply the net proceeds of its sale of the Shares substantially as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kxii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(lxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(mxiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nb) The Each of the Selling Stockholders covenant covenants and agree agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such the Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such the Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.Alex. ▇▇▇▇▇ & Sons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,any securities of the Company.
Appears in 1 contract
Sources: Underwriting Agreement (Splash Technology Holdings Inc)
Covenants of the Company and the Selling Stockholders. The Company covenants and agrees agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(a) The Company will (A) use its best efforts to cause the Registration Statement to become effective orand will not, if either before or after effectiveness, file any amendment thereto or supplement to the procedure in Rule 430A of the Rules and Regulations is followed, Prospectus (including a prospectus filed pursuant to prepare and timely file with the Commission under Rule 424(b) of which differs from the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted on file at the time of effectiveness of the Registration Statement in reliance on Rule 430A becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the Rules and Regulations, 35th day following the Effective Date or (B) not file any amendment the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement Statement, the Preliminary Prospectus or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Act or Rules or the Exchange Act or the rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwritersregulations thereunder.
(b) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The , or comparable action taken or initiated by any Other Securities Regulator, and the Company will use its best reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate use its reasonable efforts with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably have designated in writing designate, and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; PROVIDED, provided HOWEVER, the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives Representatives, on the Effective Date and thereafter from time to time during the period when delivery necessary to effect the distribution of a Prospectus is required under the Act, Shares as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to each of the Representatives at or before the Closing Date, four one (1) manually signed copies copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therewith and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested)Statement, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) The Company will comply with During the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as time necessary to permit the completion of effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated in this Agreement by the provisions hereof and the Prospectus. If If, during the period in which a prospectus is required by law necessary to be delivered by an Underwriter or dealereffect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any lawlaw or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holdersholders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than 15 months the 90th day after the effective date end of the Registration Statementfiscal quarter first occurring one year after the Effective Date, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 twelve consecutive months beginning after the effective date of the Registration StatementEffective Date, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(g) Prior to For a period of three years from the Closing Datedate of this Agreement, the Company will furnish to the UnderwritersRepresentatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they have been are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or are available its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the Company, a copy of any unaudited interim financial statements extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any period subsequent to the period covered significant subsidiary (as defined by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term Act) which is defined in the Rules and Regulations, which are not consolidated in the Company's financial statementsso consolidated.
(h) No offering, sale, short sale or other disposition of any shares of Common Stock of Promptly after the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) is advised thereof, it will be made for a period of 90 days after advise the date of this AgreementRepresentatives, directly or indirectlyand confirm in writing, by that the Company otherwise than hereunder Registration Statement and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..any amendments shall have become effective.
(i) The Company has caused each officer, director and all securityholders will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company to furnish to you, on and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the date of this agreementClosing Date or, a letter if applicable, the Option Closing Date will not issue any press releases or letters, in form other communications directly or indirectly and substance satisfactory will hold no press conferences with respect to the UnderwritersCompany, pursuant to which each such person shall agree not to offerthe financial condition, sellresults of operations, sell short business, properties, assets or otherwise dispose of any shares of Common Stock of the Company or other capital stock liabilities of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any offering of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this AgreementShares, directly or indirectly, except with without the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the ActRepresentatives.
(k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the Common Stocklisting of the Shares on the Nasdaq National Market.
(ml) The Company will not take, directly Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or indirectly, any action designed to cause as contemplated hereby or result in, or that has constituted or might reasonably be expected to constituteby the Prospectus, the stabilization or manipulation Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the price of any securities of the Company.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offeringRegistration Statement, saleoffer to sell, short sale contract to sell, sell or other disposition otherwise dispose of any shares of Common Stock the Company's common stock or other capital stock securities convertible into shares of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with Company's common stock without the prior written consent of Deutsche Bank Securities Inc.
(ii) In order BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to document the Underwriters' compliance with the reporting and withholding provisions any successor of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplatedCompany, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectlyincluding without limitation, any action designed to cause entity into which the Company might consolidate or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters and each of the Selling Stockholders that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations Regulations, and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(bii) The Company will advise the Representatives and the Selling Stockholders promptly (A) when the Registration Statement or any post-post- effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Securities Exchange Act of 1934 which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company (other than shares issuable upon the exercise of currently outstanding options and warrants) or other securities convertible into or exchangeable or exercisable exerciseable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..
(i) The Company has caused each officer, director and all securityholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.BT Alex. ▇▇▇▇▇
Appears in 1 contract
Sources: Underwriting Agreement (Hanger Orthopedic Group Inc)
Covenants of the Company and the Selling Stockholders. The Company covenants and agrees agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(a) The Company will (A) use its best efforts to cause the Registration Statement to become effective orand will not, if either before or after effectiveness, file any amendment thereto or supplement to the procedure in Rule 430A of the Rules and Regulations is followed, Prospectus (including a prospectus filed pursuant to prepare and timely file with the Commission under Rule 424(b) of which differs from the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted on file at the time of effectiveness of the Registration Statement in reliance on Rule 430A becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the Rules and Regulations, 35th day following the Effective Date or (B) not file any amendment the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement Statement, the Preliminary Prospectus or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Act or Rules or the Exchange Act or the rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwritersregulations thereunder.
(b) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The , or comparable action taken or initiated by any Other Securities Regulator, and the Company will use its best reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate use its reasonable efforts with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably have designated in writing designate, and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided, provided however, the Company -------- ------- shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives Representatives, on the Effective Date and thereafter from time to time during the period when delivery necessary to effect the distribution of a Prospectus is required under the Act, Shares as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to each of the Representatives at or before the Closing Date, four one (1) manually signed copies copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, therewith and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested)Statement, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) The Company will comply with During the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as time necessary to permit the completion of effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated in this Agreement by the provisions hereof and the Prospectus. If If, during the period in which a prospectus is required by law necessary to be delivered by an Underwriter or dealereffect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any lawlaw or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holdersholders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than 15 months the 90th day after the effective date end of the Registration Statementfiscal quarter first occurring one year after the Effective Date, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 twelve consecutive months beginning after the effective date of the Registration StatementEffective Date, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(g) Prior to For a period of three years from the Closing Datedate of this Agreement, the Company will furnish to the UnderwritersRepresentatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they have been prepared by or are available to the Companyavailable, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documentsreports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and information financial statements furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange Commission; (e) every press release which was released or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in prepared by the Company's financial statements.
; and (hf) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..
(i) The Company has caused each officer, director and all securityholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition additional information of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.
Appears in 1 contract
Sources: Underwriting Agreement (Pam Transportation Services Inc)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations Act is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and RegulationsAct, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations Act or Exchange Act and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments thereon from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of conformed copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will otherwise comply with the lawAct.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations Act and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders generally or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and RegulationsAct, if any, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale sale, issuance or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..
(i) The Company has caused each officer, director and all securityholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.Alex. Brow▇ &
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 beginning on the date hereof and continuing to, and including, the date that is 180 days after the date of the final Prospectus relating to the offering contemplated under this AgreementAgreement (the “Lock-Up Period”), directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Jefferies, except (i) the filing of a Registration Statement on Form S-8 or Form S-8/S-3 in connection with an employee stock compensation plan or agreement of the Company, (ii) issuances of Common Stock of the Company pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or non-employee related options, in each case outstanding on the Closing Date, (iii) grants of employee stock options, and the exercise of such options, pursuant to the terms of a plan or instrument disclosed in the Prospectus and (iv) the issuance of up to [ ] shares of Common Stock issued as consideration in connection with an acquisition or acquisitions; provided, however, that with respect to (iv) above, prior to the issuance of such shares the recipients of such shares shall sign an agreement in form and substance reasonably satisfactory to Jefferies under which each such recipient agrees for the remaining Lock-Up Period not offer, sell, sell short or otherwise dispose of any such shares without the prior written consent of Jefferies.
(iix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer, officer and director and all securityholders Selling Stockholder of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of the final Prospectus relating to the offering contemplated under this Agreement, directly or indirectlyindirectly (“Lockup Agreements”), except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writingJefferies.
(jxi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kxii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act (the "1940 Act").
(lxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(mxiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nxv) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(b) Each of the Selling Stockholders covenant covenants and agree agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Each Selling Stockholder shall have delivered to the Representatives on or request the registration for the offer or sale of any of the foregoing (or as prior to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with Agreement the prior written consent of Deutsche Bank Securities Inc.Lockup Agreement referenced in Section 4(a)(x) hereof.
(ii) In order to document the Underwriters' ’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,any securities of the Company.
(c) Each Selling Stockholder agrees (i) for a period of 180 days after the date of the final Prospectus related to the offering contemplated under this Agreement, not to exercise or attempt to exercise any rights such Selling Stockholder may have to register, or cause to be registered, under applicable securities laws, its securities of the Company and (ii) that the registration of such Selling Stockholder’s Shares under the Registration Statement satisfies in full the Company’s obligation to include securities of such Selling Stockholder under such Registration Statement. If, during the period of time as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with sales by an Underwriter or a dealer, there is any change in the information referred to in Section 1(b)(iv) above, the Selling Stockholder will immediately notify the Company, the Attorneys and the Underwriters in writing of such change.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, information and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including Statement(including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Alex. ▇▇▇▇▇ & Sons Incorporated except that the Company may, without such consent, issue shares upon the exercise of options outstanding on the date hereof.
(iix) The Company will obtain the approval of The Nasdaq Stock Market in connection with the issuance and listing of the applicable portion of the Shares.
(x) The Company has caused each officer, executive officer and director and all securityholders the Selling Stockholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. Alex. ▇▇▇▇▇ & Sons Incorporated ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing).
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kxi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act (the "1940 Act")▇▇▇▇ ▇▇▇.
(lxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(mxiii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nb) The Each of the Selling Stockholders covenant severally and agree not jointly covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such the Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such the Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.Alex. ▇▇▇▇▇ & Sons Incorporated.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,any securities of the Company.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees with the several Underwriters that:
(ai) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, Regulations and (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations.
(bii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(fvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(gvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(hviii) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days one year after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company or pursuant to a stock option the Company's Omnibus Stock Plan or purchase plan described in the Prospectus Employee Stock Purchase Plan or with the prior written consent of Deutsche Bank Securities Inc..BT Alex. ▇▇▇▇▇ Incorporated.
(iix) The Company will use its best efforts to list the Common Stock on The Nasdaq Stock Market.
(x) The Company has caused each officer, outside director and all securityholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares Stock or derivative of Common Shares Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days one year after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. BT Alex. ▇▇▇▇▇ Incorporated ("Lockup Agreements") and except as upon death of a Selling Stockholder or upon transfer to members of his or her family or to trusts for him, her or their benefit, that are subject to the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writingsame restrictions.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(lxi) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(mxii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(nb) The Each of the Selling Stockholders covenant covenants and agree agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such the Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such the Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days one year after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.BT Alex. ▇▇▇▇▇ Incorporated and except upon death of a Selling Stockholder or upon transfer to members of his or her family or to trusts for him, her or their benefit that take subject to the same restrictions.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, has delivered a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,any securities of the Company.
Appears in 1 contract
Sources: Underwriting Agreement (C H Robinson Worldwide Inc)
Covenants of the Company and the Selling Stockholders. The Company covenants and agrees with the several Underwriters that:
(a) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(b) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(e) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(g) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amendedAct. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(h) No Except for the distribution of the Company's shares by Sylvan Learning Systems, Inc. to its shareholders, no offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..Inc.
(i) The Company has caused each officerwill use its best efforts to list, director and all securityholders subject to notice of issuance, the Shares on The Nasdaq Stock Market.
(j) The Company will not issue any stock options pursuant to furnish to you, on its 1999 Stock Incentive Plan that are exercisable or prior to saleable (including the underlying Common Stock) during the 180 day period following the date of this agreementAgreement, unless the Company first obtains a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person who is to receive stock options from the Company, shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person person, other than sales of Common Stock contemplated by this Agreement, charitable contributions or certain transfers without consideration, or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing).
(jk) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(kl) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(lm) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(mn) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The (a) Each of the Company and the Selling Stockholders (to the extent set forth in clause (ix) below) covenants and agrees with the several Underwriters thatas follows:
(ai) The Company will (A) use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective or, if as promptly as possible. The Company shall prepare the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at and file such Prospectus pursuant to Rule 424(b) under the Securities 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 of effectiveness of as may be required by the Registration Statement Rules.
(ii) The Company shall promptly advise the Representatives in reliance on Rule 430A of the Rules and Regulations, writing (BA) not file when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(b) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effectivefiled, (B) of receipt of any comments from the Commission, (C) of any request of by the Commission for any amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (DC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus institution or threatening of any proceeding for that purpose and (D) of the institution receipt by the Company of any proceedings notification with respect to the suspension of the qualification of the Shares for that sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will shall not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain as soon as possible the lifting withdrawal thereof, if issued.
(ciii) The Company will cooperate with the Representatives in endeavoring If, at any time when a prospectus relating to qualify the Shares for sale is required to be delivered under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus 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. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(e) The Company will comply with the Securities Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealerRules, any event shall occur occurs as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement which the Prospectus in order as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, under which they were made not misleading, or, or if it is shall be necessary at any time to amend or supplement the Prospectus to comply with any lawthe Securities Act or the Rules, the Company promptly will shall prepare and file with the Commission an appropriate amendment Commission, subject to the Registration Statement second sentence of paragraph (ii) of this Section 5(a), an amendment or supplement to the Prospectus so that the Prospectus as so amended which shall correct such statement or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, omission or so that the Prospectus will comply with the lawan amendment which shall effect such compliance.
(fiv) The Company will shall make generally available to its security holders, holders and to the Representatives as soon as it is practicable to do sopracticable, but in any event not later than 15 months 45 days after the effective date end of the Registration Statement12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earning statement (which need not be audited) in reasonable detailof the Company, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statementsuch 12-month period, which earning statement shall satisfy the requirements provisions of Section 11(a) of the Securities Act and or Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made availableRules.
(gv) The Company shall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. If applicable, the copies of the Registration Statement and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(vi) The Company shall cooperate with the Representatives and their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation as doing business in any jurisdiction.
(vii) The Company, during the period when the Prospectus is required to be delivered under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(viii) Without the prior written consent of CIBC World Markets Corp., for a period of 180 days after the date of this Agreement, the Company and each of its individual directors and executive officers shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's existing stock option plan or bonus plan as described in the Registration Statement and the Prospectus. In the event that during this period, (A) any shares are issued pursuant to the Company's existing stock option plan or bonus plan that are exercisable during such 180 day period or (B) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 180 days after the date of this Agreement, such person will not, without the prior written consent of CIBC World Markets Corp., offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person.
(ix) Neither the Company nor any Selling Stockholder shall take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock or any security of the Company to facilitate the sale or resale of any of the Shares.
(x) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the Nasdaq National Market (including any required registration under the Exchange Act).
(xi) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by issue no press release or are available other communications directly or indirectly and hold no press conference with respect to the Company, a copy the condition, financial or otherwise, or the earnings, business affairs or business prospects of any unaudited interim financial statements of them, or the offering of the Shares without the prior written consent of the Representatives unless in the judgment of the Company for any period subsequent and its counsel, and after notification to the period covered Representatives, such press release or communication is required by law.
(xii) [The Company will comply with all applicable securities laws and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Friends and Family Program.]
(xiii) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under "Use of Proceeds" in the Prospectus, and the Company will at all times prior to the application of the net proceeds from the offering operate its business so as not to become an "investment company" within the meaning of the Investment Company Act.
(xiv) [The Company will ensure that the Directed Shares will be restricted, to the extent required by the most recent financial statements appearing in NASD or the NASD rules, from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. The Representatives will notify the Company as to which Participants will need to be so restricted. The Company shall direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.]
(b) The Company agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, each preliminary prospectus, the Prospectus, all amendments and supplements to the Registration Statement and the Prospectus. The Company will, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for a period the Shares to the Underwriters; (iii) the registration or qualification of five years from the Closing DateShares for offer and sale under the securities or blue sky laws of the various jurisdictions referred to in Section 5(a)(vi), deliver including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary blue sky memoranda, if any; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of annual reports each preliminary prospectus, the Prospectus and copies all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of the NASD in connection with its review of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for quotation on the Nasdaq National Market; and (vii) all other documentstransfer taxes, reports if any, with respect to the sale and information furnished delivery of the Shares by the Company to its stockholders the Underwriters [(viii) payments to counsel for costs incurred by the Underwriters in connection with the Friends and Family Program and payment of any stamp duties, similar taxes or filed duties or other taxes, if any, incurred by the Underwriters in connection with any securities exchange pursuant the Friends and Family Program.] Subject to the requirements provisions of such exchange Section 8, the Underwriters agree to pay, whether or with not the Commission pursuant transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(h) No offering, sale, short sale or other disposition of any shares of Common Stock performance of the Company or other securities convertible into or exchangeable or exercisable for shares obligations of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of Underwriters under this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued Agreement not payable by the Company pursuant to a stock option or purchase plan described in the Prospectus or with preceding sentence, including, without limitation, the prior written consent fees and disbursements of Deutsche Bank Securities Inc..counsel for the Underwriters.
(c) The Selling Stockholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) The Company has caused each officerany stamp duties, director capital duties and all securityholders of the Company to furnish to youstock transfer taxes, on or prior to the date of this agreementif any, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to payable upon the sale of the Shares to the Underwriters, and their transfer between the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(k) The Company shall not investUnderwriters pursuant to an agreement between such Underwriters, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc.
(ii) In order to document the Underwriters' compliance with the reporting fees and withholding provisions disbursements of the Tax Equity their respective counsel and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)accountants.
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock,.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The Each of the Company and the Selling Stockholders covenants and agrees with the several Underwriters thatas follows:
(a) The Company will (A) will, and the Selling Stockholders shall use its their best efforts to cause the Registration Statement to become effective orCompany to, if the procedure in Rule 430A of the Rules and Regulations is followed, to (i) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of and (ii) the Rules Company will not, and Regulationsthe Selling Stockholders shall use their best efforts to ensure that the Company does not, (B) not file any amendment to the Registration Statement or supplement to the Prospectus of which the Representatives you shall not previously have been advised and furnished with a copy or to which the Representatives you shall have reasonably objected in writing or which is not in compliance with the Rules Securities Act or the rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date regulations of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersCommission.
(b) The Company will advise will, and the Representatives Selling Stockholders shall use their best efforts to cause the Company to, promptly notify each Underwriter in the event of (Ai) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of by the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (Dii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, (iii) the institution or the use notice of the Prospectus or of the intended institution of any proceedings action or proceeding for that purpose, (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction, or (v) the receipt by the Company of notice of the initiation or threatening of any proceeding for such purpose. The Company and the Selling Stockholders will use its best efforts make every reasonable effort to prevent the issuance of any such a stop order preventing or suspending the use of the Prospectus and and, if such an order shall at any time be issued, to obtain as soon as the withdrawal thereof at the earliest possible the lifting thereof, if issuedmoment.
(c) The Company will, and the Selling Stockholders shall use their best efforts to cause the Company to, (i) on or before the Closing Date, deliver to you a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, promptly upon the filing thereof, a signed copy of each post-effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and will cooperate also deliver to you, for distribution to the Underwriters, a sufficient number of additional conformed copies of each of the foregoing (but without exhibits) so that one copy of each may be distributed to each Underwriter, (ii) as promptly as possible deliver to you and send to the several Underwriters, at such office or offices as you may designate, as many copies of the Prospectus as you may reasonably request, and (iii) thereafter from time to time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Prospectus and of any amended prospectus, filed by the Company with the Representatives Commission, as you may reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in endeavoring which a prospectus is required by law to qualify be delivered by an Underwriter or dealer any event relating to or affecting the Company, or of which the Company shall be advised in writing by you, shall occur as a result of which it is necessary, in the opinion of counsel for the Company or of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the Shares, the Company will, and the Selling Stockholders shall use their best efforts to cause the Company to, forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any 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 existing at the time such Prospectus is delivered to such purchaser, not misleading. If, after the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if in the opinion either of counsel for the Company or of counsel for the Underwriters such proposed variation requires that the Prospectus be supplemented or amended, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and all dealers to whom any of the Shares 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 Shares in accordance with the applicable provisions of the Securities Act and the rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to you, for your information, a copy of any post-effective amendment to the Registration Statement and any supplement to the Prospectus or any amended prospectus proposed to be filed.
(f) The Company will cooperate, and the Selling Stockholders shall use their best efforts to cause the Company to cooperate, when and as requested by you, in the qualification of the Shares for offer and sale under the securities or blue sky laws of such jurisdictions as you may designate and, during the Representatives may reasonably have designated period in writing and will make which a prospectus is required by law to be delivered by an Underwriter or dealer, in keeping such applicationsqualifications in good standing under said securities or blue sky laws; provided, file such documentshowever, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where in which it is not now so qualified or required to file such a consentqualified. The Company will, from time to time, prepare and file such statements, reports, and other documents, documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives you may reasonably request for distribution of the Shares.
(dg) The During a period of five years commencing with the date hereof, the Company will deliver tofurnish to you, or upon the order ofand to each Underwriter who may so request in writing, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies all periodic and special reports furnished to stockholders of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments theretoinformation, as documents and reports filed with the Representatives may reasonably requestCommission (including the Report on Form SR required by Rule 463 of the Commission under the Securities Act).
(eh) The Company will comply with Not later than the Act and 45th day following the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations end of the Commission thereunder, so as to permit fiscal quarter first occurring after the completion first anniversary of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any lawEffective Date, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, holders an earning earnings statement (which need not be auditedcertified by independent certified public accountants unless required by the Securities Act or the rules and regulations thereunder, but which shall satisfy the provisions of Section 11(a) in reasonable detailof the Securities Act and Rule 158 thereunder, covering a period of at least 12 consecutive twelve months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(g) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to day immediately succeeding the Act or the Securities Exchange Act of 1934, as amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statementsEffective Date.
(h) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder and Common Stock issued by the Company pursuant to a stock option or purchase plan described in the Prospectus or with the prior written consent of Deutsche Bank Securities Inc..
(i) The Company has caused each officeragrees to pay, director and all securityholders of the Selling Stockholders agree to use their best efforts to cause the Company to furnish to youpay, on or prior all costs and expenses incident to the date performance of their obligations under this Agreement, including all costs and expenses incident to (i) the preparation, printing and filing with the Commission and the NASD of the Registration Statement, any Preliminary Prospectus and the Prospectus, (ii) the furnishing to the Underwriters and, if applicable, the persons designated by them of copies of any Preliminary Prospectus and of the several documents required by paragraph (c) of this agreementSection 6 to be so furnished, a letter or letters, in form (iii) the printing of this Agreement and substance satisfactory related documents delivered to the Underwriters, pursuant (iv) the preparation, printing and filing of all supplements and amendments to the Prospectus referred to in paragraph (d) of this Section 6, (v) the furnishing to you and the Underwriters of the reports and information referred to in paragraph (g) of this Section 6 and (vi) the printing and issuance of stock certificates, including the transfer agent's fees. The Selling Stockholders will pay any transfer taxes incident to the transfer to the Underwriters of the Shares being sold by the Selling Stockholders.
(j) The Company agrees to reimburse you, and the Selling Stockholders shall use their best efforts to cause the Company to reimburse you, for the account of the several Underwriters, for blue sky fees and related disbursements (including reasonable counsel fees and reasonable disbursements and cost of printing memoranda for the Underwriters) paid by or for the account of the Underwriters or their counsel in qualifying the shares under state securities or blue sky laws and in the review of the offering by the NASD.
(k) The Company and the Selling Stockholders acknowledge that the provisions of paragraphs (i) and (j) of this Section are intended to relieve the Underwriters from the payment of the expenses and costs which each the Company hereby agrees to pay and shall not affect any agreement which the Company and the Selling Stockholders may make, or may have made, for the sharing of any such person shall agree not to expenses and costs.
(l) The Company hereby agrees that, without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., the Company will not, for a period of 180 days following the date the Registration Statement becomes effective, directly or indirectly, offer, sell, sell short pledge, contract to sell, grant any option to purchase or otherwise dispose of any shares of Common Stock of the Company owned beneficially or other capital stock of the Companyotherwise (including, or any other securities convertiblewithout limitation, exchangeable or exercisable for Common Shares or derivative shares of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to Stock which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required deemed to be beneficially owned in accordance with Rule 463 under the Act.
(k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale rules and regulations of the Shares in Securities and Exchange Commission and shares of Common Stock which may be issued upon exercise of a stock option or warrant) or any securities convertible into, derivative of or exercisable or exchangeable for such a manner as would require the Company to register as an investment company under the Investment Company Act (the "1940 Act").
(l) The Company will maintain a transfer agent andCommon Stock, if necessary under the jurisdiction of incorporation of the Company, a registrar except for the issuance of shares of Common StockStock upon the exercise of options to purchase Common Stock which are outstanding on the date hereof.
(m) The If at any time during the 25-day period after the Registration Statement becomes effective any rumor, publication or event relating to or affecting the Company will not takeshall occur as a result of which in your opinion the market price for the shares has been or is likely to be materially affected (regardless of whether such rumor, directly publication or indirectly, any action designed event necessitates a supplement to cause or result in, or that has constituted or might reasonably be expected to constituteamendment of the Prospectus), the stabilization Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or manipulation of the price of any securities of the Companyother public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(n) The Selling Stockholders covenant and agree Company is familiar with the several Underwriters that:Investment Company Act of 1940, as amended, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner to ensure that the Company was not and will not be an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
(io) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock The Company agrees to maintain directors' and officers' insurance customary for the size and nature of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) will be made Company's business for a period of 90 days after two years from the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc..
(iip) In order to document At the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, the Company will further issue and sell to the Representatives or, at its direction, to its bona fide officers or partners, as applicabledescribed below, for a properly completed total purchase price of $220, warrants (the "Warrants") entitling the holders thereof to purchase up to an aggregate of 220,000 shares of Common Stock (subject to adjustment) (the "Warrant Shares") for a period of four (4) years, such period to commence one year after the effective date of the Registration Statement (except as otherwise set forth in the Warrant Agreement referred to below). Said Warrants shall contain terms and executed United States Treasury Department Form W-8 or W-9 provisions set forth in the Warrant Agreement of even date among the Company and the Representatives (or other applicable form or statement specified by Treasury Department regulations the "Warrant Agreement"). As provided in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitutethe Warrant Agreement, the stabilization or manipulation Representatives may designate that some of all of the price Warrants be issued in varying amounts directly to its bona fide officers or partners and not to the Representatives. Such designation will be made by the Representatives only if it determines that such issuances would not violate the rules and interpretations of Common Stock,the Board of Governors of the NASD relating to the review of corporate financing arrangements and subject to applicable federal and state securities laws. As further provided, no transfer, assignment or hypothecation of the Warrants shall be made by the Representatives for a period of 12 months from the issuance of the Warrants, except to its bona fide officers or partners and subject to applicable federal and state securities laws.
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